Opinion
July 8, 1985
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Judgment affirmed.
Defendant argues that it was error to permit two eyewitnesses to make an in-court identification of him. During the trial it was brought out that both of the witnesses were acquainted with the defendant. On the day of the murder they recognized him the moment he entered the apartment where the crime took place. Under such circumstances, no Wade hearing was required ( People v Miles, 103 A.D.2d 1017; People v. Roberts, 103 A.D.2d 975, affd 64 N.Y.2d 854).
In their attempt to identify the defendant, the police conducted an identification procedure through the use of a photographic array. The photograph of defendant was one taken 16 months prior to his arrest for the instant crime. Defendant argues that the photograph taken at the time of his arrest was the proper one to employ in the array. Testimony brought out that the arrest photograph of the defendant pictured him with a Band Aid on his head. There were also markings on the rear of the arrest photograph which came through. The use of this photograph would have prejudiced the defendant. There was no error in employing the 16-month-old photograph in the police files.
The court restricted defense counsel with respect to cross-examination of a People's witness regarding the acts underlying four charges on which he had not yet been tried. Although this was error, during cross-examination, defense counsel elicited the fact that the witness had four charges pending against him. In addition, the cross-examination included inquiry as to any promises made by the People to the witness in exchange for his testimony. Under such circumstance, the defense had an adequate opportunity to impeach the witness regarding his prior record. In any event, in light of the overwhelming evidence of guilt, the ruling by the court did not contribute to defendant's conviction ( People v. Malizia, 62 N.Y.2d 755, cert denied ___ US ___, 105 S Ct 327).
The introduction of a photograph of the crime scene was not error. The photograph was at least somewhat probative of an issue in the case regarding where the shooting occurred ( People v Ferris, 105 A.D.2d 1136; People v. Bell, 63 N.Y.2d 796).
Therefore, the judgment of conviction is affirmed. Mangano, J.P., Thompson, Brown and Kunzeman, JJ., concur.