Opinion
January 18, 1994
Appeal from the Supreme Court, Kings County (Feldman, J.).
Ordered that the judgment is affirmed.
The People concede, and we agree, that the defendant's arrest for shooting three people on October 6, 1990, was made without probable cause. However, subsequent to this illegal arrest, eyewitnesses identified the defendant as the perpetrator of the crime from a photographic array. The photograph of the defendant used in the array had been acquired from the 83rd Precinct, where it was on file from a prior arrest. Following the photographic viewing, and approximately seven hours after the defendant was arrested, a corporeal lineup was conducted in which four eyewitnesses and one victim identified the defendant as the shooter.
Under these circumstances, we agree with the hearing court's conclusion that the lineup identifications were admissible because they were sufficiently attenuated from the arrest (see, People v. Conyers, 68 N.Y.2d 982). The photograph of the defendant selected from the array was already on file with the police department, and the photographic identifications therefore were not tainted by the illegal arrest (see, People v. Wilson, 131 A.D.2d 526). Consequently, the lineup identifications, made subsequent to the photographic identifications, also were unaffected (People v. Allah, 140 A.D.2d 613; People v. Wilson, supra). Furthermore, upon a review of the record we reject the defendant's argument that the photographic array and lineup were unduly suggestive.
The defendant's remaining contentions regarding the prosecutor's summation are either unpreserved for appellate review or without merit. In any event, were we to review the unpreserved issues in the exercise of our interest of justice jurisdiction, we would find that in view of the overwhelming evidence of the defendant's guilt, any error was harmless (see, People v Crimmins, 36 N.Y.2d 230; People v. Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 837). Ritter, J.P., Copertino, Pizzuto and Joy, JJ., concur.