Opinion
December 11, 1990
Appeal from the Supreme Court, New York County (Herbert Altman, J.).
The hearing court properly found that the complainant's out-of-court identifications of defendant were not unnecessarily suggestive or conducive to mistaken identification. The fact that the photographic array and the photograph of the lineup were apparently lost sometime after trial does not give rise to an inference that the array or lineup was suggestive, since the hearing court had the opportunity to view the photographs and determined that they were not unduly suggestive. (People v. Eleby, 137 A.D.2d 707, lv. denied 71 N.Y.2d 1026.)
Contrary to defendant's claim pertaining to the prosecutor's summation, the remarks complained of that there were no other eyewitnesses aside from persons "involved with defendant" are not of such character as would naturally and reasonably be interpreted by the jury as adverse comment on defendant's failure to take the stand. (See, People v. Burke, 72 N.Y.2d 833.)
We have considered defendant's other claims and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Carro, Milonas and Rubin, JJ.