PEOPLE v. SMITH

ORDERED that the judgment and amended sentence are affirmed.

The defendant's contention that the complainant's lineup identification of him was unduly suggestive because the fillers were older men than he is unpreserved for appellate review, since he failed to raise this specific contention at the Wade hearing (United States v. Wade, 388 U.S. 218; see CPL 470.05; People v. Velez, 222 A.D.2d 625). In any event, there is no merit to the defendant's argument. Lineup fillers do not have to be identical in appearance to the defendant. However, they must be sufficiently similar so that no characteristic or visual clue would orient the viewer toward the defendant as the crime perpetrator (see People v. Merisier, 258 A.D.2d 535). The hearing court, which examined the photographs of the lineup, determined that the age differences between the fillers and the defendant were not apparent to the viewer and that the fillers bore a resemblance to the defendant. The hearing court determined that the lineup was not unduly suggestive, and its determination, under the circumstances, should not disturbed on appeal (see People v. Jackson, 98 N.Y.2d 555 [Oct. 17, 2002]; People v. Veeney, 215 A.D.2d 605, 606).

FLORIO, J.P., KRAUSMAN, TOWNES and CRANE, JJ., concur.