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PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT, V WARREN D. FREENEY, DEFENDANT-APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT. FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from a judgment of Supreme Court, Erie County (Rossetti, J.), entered November .....

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THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT. FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (PAUL J. WILLIAMS, III, OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from a judgment of Supreme Court, Erie County (Rossetti, J.), entered November 24, 1998, convicting defendant after a jury trial of, inter alia , robbery in the first degree (four counts). It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentences imposed on counts 4, 5, 7, 8, 9, 10, 11, 12 and 16 and as modified the judgment is affirmed and the matter is remitted to Supreme Court for resentencing on those counts. Memorandum: Defendant was indicted on 16 counts arising from three separate incidents. On appeal from a judgment convicting him following a jury trial of, inter alia , four counts of robbery in the first degree (Penal Law ?§ 160.15 [1] [two counts]; ?§ 160.15 [3] [two counts]), defendant contends that Supreme Court erred in denying his motion to suppress identification evidence. We disagree. “The People satisfied their initial burden of establishing the lack of any undue suggestiveness in the lineup procedure, and defendant failed to satisfy his ultimate burden of proving that the lineup was unduly suggestive” ( People v Anthony P. , 277 AD2d 1024, lv denied 96 NY2d 780; see generally , People v Chipp , 75 NY2d 327, 335, cert denied 498 US 833). Although defendant may have been slightly taller than the other stand-ins and was the only person wearing black leather shoes, those differences were not “sufficient to create a substantial likelihood that * * * defendant would be singled out for identification” ( People v Chipp , supra , at 336).

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