Opinion
January 17, 1989
Appeal from the County Court, Suffolk County (Tisch, J.).
Ordered that the judgment is affirmed.
The 16-year-old victim of the instant armed robbery had an adequate opportunity to observe the defendant under good viewing conditions at the scene of the crime. He subsequently identified a photograph of the defendant from a photographic array. The photographs displayed were "sufficiently similar so as not to create a substantial risk of misidentification" (People v Grant, 130 A.D.2d 589, lv denied 70 N.Y.2d 647). Nor was the defendant's photograph distinctive in content or manner of display (see, People v Cicero, 119 A.D.2d 687, lv denied 68 N.Y.2d 666; see also, People v Magee, 122 A.D.2d 227). Similarly, the complainant's subsequent lineup identifications of the defendant were not tainted by any undue suggestiveness (see, People v Smith, 140 A.D.2d 647; People v Rodriguez, 124 A.D.2d 611). As the identification procedures were not unduly suggestive, the complainant's identification testimony was properly received at trial (see, People v Nurse, 142 A.D.2d 738; People v Jackson, 108 A.D.2d 757). Moreover, the complainant's identification of the defendant was not improperly bolstered by the fact that he testified that he had identified his assailant in two lineups (People v Benneman, 112 A.D.2d 941), and the subsequent testimony of the various police officers similarly did not constitute bolstering (see, People v Brown, 115 A.D.2d 485, lv denied 67 N.Y.2d 760; People v Rhone, 115 A.D.2d 669).
Additionally, the defendant was not deprived of a fair trial by the court's charge. Although the court did instruct the jury that no negative inferences were to be derived from the defendant's decision not to testify without any request by the defendant for this charge (see, People v Vereen, 45 N.Y.2d 856), reversal of the judgment is not warranted as there is no reasonable probability that the error contributed to the defendant's conviction and thus, the error was harmless beyond a reasonable doubt (People v Vereen, 45 N.Y.2d 856, supra; see also, People v Kimbrough, 134 A.D.2d 618, lv denied 70 N.Y.2d 1007).
We have examined the defendant's remaining contentions and find them to be without merit. Mangano, J.P., Thompson, Kunzeman and Eiber, JJ., concur.