PEOPLE v. DAVIS

ORDERED that the judgment is affirmed.

There is no merit to the defendant's contention that the complainant's identification of him at a police lineup should have been suppressed. While the defendant was the tallest participant in the lineup, the complainant first identified him while all participants in the lineup were seated (see, People v. Garcia, 215 A.D.2d 584, 585). Additionally, although the defendant was the youngest of the lineup participants, several of the participants appeared to be approximately the same age as he.

The trial court properly denied the defendant's application to proceed pro se since the request, while timely, was not unequivocal (see, People v. McIntyre, 36 N.Y.2d 10, 17; People v. Rheubottom, 131 A.D.2d 790).

The court properly directed that the term of imprisonment on the conviction of the crime of burglary in the first degree run consecutively with the terms of imprisonment imposed for the convictions of the crimes of rape in the first degree, sodomy in the first degree, and attempted rape in the first degree. The crime of burglary was a separate and distinct crime from the charges of rape, sodomy, and attempted rape (see, People v. Laureano, 87 N.Y.2d 640, 643; People v. Davis, 238 A.D.2d 517, 518). Moreover, the sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).

The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05), or without merit.