Opinion
May 7, 1999
Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J. — Burglary, 2nd Degree.
Present — Denman, P. J., Pine, Pigott, Jr., Hurlbutt and Balio, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of two counts of burglary in the second degree (Penal Law § 140.25) and other crimes, defendant contends that the identification testimony of a witness should have been suppressed because it was based upon suggestive pretrial identification procedures. We disagree. The People met their initial burden of demonstrating the lack of suggestiveness, and defendant failed to carry the ultimate burden of proving that the procedures were unduly suggestive ( see, People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833). Defendant contends that it was suggestive for the witness to have been shown two photo arrays, each containing his photograph. The witness failed to identify anyone from the first array, but identified defendant from the second array, which contained color photographs and a full face and profile photograph of each person. "Successive photo arrays are not per se impermissibly suggestive" ( People v. Lee, 207 A.D.2d 953, lv denied 85 N.Y.2d 864). Here, different photographs of defendant were used in the two arrays ( see, People v. Lee, supra), and the witness testified that she did not know that defendant's photograph was in the first array until several weeks after she identified defendant from the second array.
The record of the Wade hearing fails to support defendant's contention that, prior to allowing the witness to view each photo array, the police officer told her that a photograph of the suspect was included in the array. In any event, advising a witness that a photograph of the suspect is included in the array "is not fatal to the propriety of the procedure" ( People v. Smith, 140 A.D.2d 647, lv denied 72 N.Y.2d 961; see, People v. Aufiero, 139 A.D.2d 656).
Even assuming, arguendo, that the photographic identification procedures were suggestive, we conclude that the People proved by clear and convincing evidence that the witness had an independent basis for her in-court identification of defendant ( see, People v. Chipp, supra, at 335; People v. Campbell, 200 A.D.2d 624, 625-626, lv denied 83 N.Y.2d 869). The sentence is neither unduly harsh nor severe.