PEOPLE v. SNYDER

ORDERED that the judgment is modified, on the law, by vacating the sentences imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.

There is no merit to the defendant's contention that the lineup was unduly suggestive because there were significant differences in height, age, and weight between the defendant and the other individuals in the lineup. "While due process requires that pretrial identification procedures be fair, there is no requirement that the defendant must be surrounded by fillers who have identical physical characteristics" (People v. Briggs, 285 A.D.2d 514, lv denied 98 N.Y.2d 636; see People v. Gelzer, 224 A.D.2d 443). To the contrary, the fillers need only resemble the defendant (see People v. Keller, 242 A.D.2d 735). The photographs taken of the lineup reflect that the fillers sufficiently resembled the defendant. Accordingly, we decline to disturb the hearing court's conclusion that the lineup was fair and not unduly suggestive (see People v. Prochilo, 41 N.Y.2d 759).

However, the imposition of consecutive sentences in this case was illegal (see Penal Law § 70.25; People v. Ramirez, 89 N.Y.2d 444; People v. Laureano, 87 N.Y.2d 640). Under the circumstances of this case, rather than exercising our discretion and modifying the sentences imposed, remittal to the Supreme Court for resentencing is appropriate (see People v. Hill, 254 A.D.2d 432).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, either are unpreserved for appellate review or without merit.

FLORIO, J.P., ADAMS, CRANE and RIVERA, JJ., concur.