Opinion
June 24, 1985
Appeal from the Supreme Court, Kings County (De Lury, J.).
Judgment affirmed.
Defendant argues, inter alia, that the lineup procedure was tainted by a remark made by a police officer, three months earlier, indicating that the witness selected the "right person" from a photo array. This claim was fully addressed at a suppression hearing, and was rejected by the hearing court. Although the remark was imprudent, as the People concede, under the circumstances we find there to be more than sufficient evidence to support the hearing court's finding of no suggestiveness, particularly in light of the lapse of time between the two procedures ( see, People v. Chamberlain, 96 A.D.2d 959), the significant difference in defendant's appearance in the array photograph and in the lineup ( see, People v. Rodriquez, 64 N.Y.2d 738), and the fact that the witness was never told that the person whose picture he selected would be in the lineup. We have examined defendant's remaining contentions and find them to be without merit. Gibbons, J.P., Thompson, Weinstein and Lawrence, JJ., concur.