The People of the State of New York, Respondent, v. Windell Gallant, Appellant

The People of the State of New York, Respondent, v Windell Gallant, Appellant. [MAJORITY] Appeal by the defendant from a judgment of the County Court, Nassau County (Orenstein, J.), rendered March 25, 1987, convicting him of robbery in the first degree (two counts), criminal use of a firearm in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and unlawful possession of marihuana, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Goodman, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony. Ordered that the judgment is affirmed. The defendant claims that the lineup at which he was identified by the victim was unduly suggestive because 3 of the 4 fillers had mustaches and he was never described by the victim as having a mustache. Under the totality of the circumstances, we conclude that the lineup was not unduly suggestive (see, Stovall v Denno, 388 US 293). There is no requirement that a defendant in a lineup must be surrounded by persons nearly identical to him in appearance (see, People v Mattocks, 133 AD2d 89, 90; People v Rodriguez, 124 AD2d 611, 612). The fillers in the defendant’s lineup were of the defendant’s age with similar complexions and haircuts. The lineup was not rendered suggestive merely because three of these men sported light mustaches. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]). We have examined the defendant’s other contentions and find them to be without merit (see, County Ct. v Allen, 442 US 140, 155-163; People v McKenzie, 67 NY2d 695, 696-697; cf., People v Crenshaw, 202 Misc 179, 183). Mollen, P. J., Mangano, Kooper and Spatt, JJ., concur.