Opinion
May 11, 1992
Appeal from the Supreme Court, Kings County (Feldman, J.).
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of his due process right to a fair trial by the admission of the complainants' lineup identifications which were tainted by a suggestive photographic identification procedure at which the complainants jointly viewed a stack of photographs on top of which the defendant's picture had been placed. The defendant failed to preserve for appellate review his claim that the identification procedure was unduly suggestive based upon the complainants' joint viewing of photographs at the precinct (CPL 470.05). In any event, under the facts and circumstances of this case, the claim is without merit. While the practice of eliciting photographic identifications from more than one witness at a time has been condemned as unduly suggestive (see, People v Fernandez, 82 A.D.2d 922), "it cannot be said that this procedure alone constitutes reversible error" (People v. Mosley, 110 A.D.2d 937, 938). The record contains no evidence that the two complainants consulted with one another in determining which picture depicted their assailant. In fact, the only evidence adduced at the hearing revealed that within seconds of having the photos placed in front of them, the complainants simultaneously exclaimed "that's him". "Thus, there is no evidence that either witness influenced the other, or that the viewing of the photos was otherwise tainted" (People v. Cummings, 109 A.D.2d 748). Additionally, the hearing court determined that it was merely a coincidence that the defendant's picture was placed on the top of the pile of photographs to be reviewed by the complainants and expressly credited the hearing testimony of both complaining witnesses and the Detective who conducted the photographic array. It is well settled that a hearing court's determination is to be accorded great deference on appeal and will not be disturbed unless it is clearly unsupported by the record (see, People v Crandall, 172 A.D.2d 618; People v. Diaz, 170 A.D.2d 618). We find that there is no basis on the instant record to upset the hearing court's factual determinations and its assessment of the witnesses' credibility.
We have examined the defendant's remaining contention regarding the ineffective assistance of counsel and find it to be without merit (see, CPL 470.05; People v. Hazzard, 177 A.D.2d 593). Thompson, J.P., Miller, Ritter and Copertino, JJ., concur.