Opinion
January 11, 1988
Appeal from the Supreme Court, Queens County (Linakis, J.).
Ordered that the judgment is affirmed.
The victim, a television producer and photographer, viewed a lineup 16 days after the crime. At the suppression hearing, he testified that although he instantly recognized the defendant as his assailant, he continued to scrutinize the lineup for 2 or 3 more minutes, out of extra caution, before identifying the defendant. He then requested a closer view of the defendant because the defendant appeared to have more facial hair at the lineup than he had at the time of the crime. The victim then briefly left the viewing room. When he returned, the defendant was standing eight feet closer than the five fillers, all of whom were seated. The victim then reaffirmed his initial identification.
Although the second viewing was in the nature of a showup, it was merely confirmatory (see, People v Morales, 37 N.Y.2d 262, 271-272; People v Scott, 124 A.D.2d 684), and it did not taint the first viewing or the in-court identification. This is not a situation in which the stimulus to identify the defendant was placed in the victim's mind by procedures selected by the police (cf., People v Adams, 53 N.Y.2d 241). The hearing court properly concluded that the procedure used was not likely to give rise to a substantial likelihood of "irreparable misidentification" (see, Manson v Brathwaite, 432 U.S. 98, 107; Neil v Biggers, 409 U.S. 188).
Furthermore, we agree with the hearing court's determination that the victim had a basis for the in-court identification independent of the lineup procedures. The victim had both the opportunity and ability to form a mental image of his assailant, whom he faced directly throughout the encounter. In addition, the victim provided a detailed description of his assailant which matched the defendant (see, People v Mallory, 126 A.D.2d 750).
Finally, although the victim's testimony that he told his wife that he was certain that the man he selected at the lineup was his assailant constituted improper bolstering, the error was harmless. In light of the strong identification testimony adduced at trial, there was no significant probability that but for the bolstering testimony the defendant would have been acquitted (see, People v Johnson, 57 N.Y.2d 969; People v Green, 121 A.D.2d 739). Bracken, J.P., Kunzeman, Spatt and Harwood, JJ., concur.