The People of the State of New York, Respondent, v. Wilfredo Marquez, Appellant

The People of the State of New York, Respondent, v Wilfredo Marquez, Appellant. [696 NYS2d 422] [MAJORITY] Judgment, Supreme Court, New York County (James Yates, J.), rendered July 22, 1997, convicting defendant, after a jury trial, of rape in the first degree (two counts), sodomy in the first degree (two counts), sexual abuse in the first degree (four counts), and robbery in the third degree, and sentencing him, as a second violent felony offender, to consecutive terms of 25 years on the rape convictions, to run concurrently with concurrent terms of 25 years on the sodomy convictions, 7 years on the sexual abuse convictions, and SVa to 7 years on the robbery conviction, unanimously affirmed. The court properly found that the lineup procedures herein were not unduly suggestive. A review of the relevant lineup photographs confirms the court’s determination that, with all participants seated, differences in height and weight between defendant and the fillers were appropriately minimized and that, in all other respects, the. participants were sufficiently similar in appearance so that there was no substantial likelihood that defendant would be singled out for identification (see, People v Tyler, 199 AD2d 102, lv denied 82 NY2d 931). The court properly discharged a sworn juror, pursuant to CPL 270.15 (3), based upon the juror’s statement that he would abandon his obligations as a juror in favor of personal concerns brought to the attention of the court after the juror had been sworn (see, People v O’Kane, 224 AD2d 182, lv denied 88 NY2d 939). Concur — Ellerin, P. J., Tom, Mazzarelli, Wallach and Lerner, JJ.