Opinion
February 24, 1986
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Judgment affirmed.
While there were certain inconsistencies in the complaining witness's testimony, these inconsistencies were fully explored at trial (see, People v. Bigelow, 106 A.D.2d 448) and, in any event, did not rise to such a level as to make her testimony incredible as a matter of law (see, People v. Herbert, 100 A.D.2d 883; People v. Monaco, 93 A.D.2d 823). The defendant's guilt was proved beyond a reasonable doubt.
Furthermore, although we strongly disapprove of the failure of the police to preserve the photo array shown to the complainant (see, People v. Ennis, 107 A.D.2d 707; People v. Foti, 83 A.D.2d 641), the inference of suggestiveness arising from that failure was sufficiently rebutted by the circumstances surrounding the identification procedure employed and by the volume of pictures shown to the complainant (see, People v. Rahming, 26 N.Y.2d 411; cf. People v. Johnson, 106 A.D.2d 469).
The alleged errors in the jury charge and the alleged bolstering of identification testimony were not preserved for appellate review (see, CPL 470.05; People v. Thomas, 50 N.Y.2d 467), and we decline to exercise our interest of justice jurisdiction to review them.
Finally, in light of the defendant's prior criminal history and the nature of the offense at bar, the court's imposition of the maximum sentence upon the defendant's adjudication as a second violent felony offender does not require modification. Lazer, J.P., Thompson, Weinstein and Eiber, JJ., concur.