Opinion
March 16, 1987
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the judgment is affirmed.
The court acted properly in denying, without a hearing, the defendant's pretrial motion to dismiss the indictment for lack of prompt prosecution. The only matter to be resolved by the court was whether the delay between the time the crime took place and the time of the defendant's arrest was excusable (see, People v Singer, 44 N.Y.2d 241, 254). That having been established by the affirmation submitted by the People, the other factors to be considered by the court (see, People v. Bryant, 65 A.D.2d 333, 336, appeal dismissed 46 N.Y.2d 1037) provided no support for the allegation that the defendant's due process rights had been violated (see, People v. Bonsauger, 91 A.D.2d 1001, 1002).
Further, the witness's pretrial identifications of the defendant were properly upheld. The People's failure to retain a photo array shown to the witness shortly after the crime is without effect since the defendant's photograph was assertedly omitted from the May 1 array. Had there been any police impropriety related to the showing of that first photo array, it cannot have had an effect on the subsequent procedures in which the defendant was identified (see, People v. Hernandez, 122 A.D.2d 856). The other factors pointed to by the defendant to challenge the reliability of the witness's identification affect only the weight to be accorded her identification, rather than its admissibility (see, People v. Broadwater, 105 A.D.2d 1065). Without any evidence of suggestive conduct by the police conducting the pretrial identification procedures in which the defendant was identified, suppression of the resulting identification is unwarranted (see, People v. Mitchell, 116 A.D.2d 744, 745).
Finally, the hearing court did not err in concluding that holding a lineup without notifying counsel was not a violation of the defendant's right to counsel (see, People v. Hawkins, 55 N.Y.2d 474, 487, cert denied 459 U.S. 846). Mangano, J.P., Brown, Niehoff and Eiber, JJ., concur.