Opinion
May 21, 1990
Appeal from the Supreme Court, Kings County (Garry, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the evidence adduced at the hearing amply supports the conclusion that the complainant's pretrial identification of the defendant was confirmatory in nature, as the complainant testified that he was familiar with the defendant from having seen him in the neighborhood on prior occasions (see, e.g., People v. Stewart, 144 A.D.2d 601; People v Ingram, 110 A.D.2d 852; People v. Fleming, 109 A.D.2d 848; cf., People v. Jackson, 159 A.D.2d 640).
Inasmuch as the hearing court properly found the identification to be confirmatory, the issue of suggestiveness raised by the defendant with regard to the lineup is irrelevant (see, People v Tas, 51 N.Y.2d 915; People v. Gissendanner, 48 N.Y.2d 543; People v. Jackson, supra). In any event, the defendant has failed to demonstrate that the purported exhibition to the complainant of a book of photographs containing the defendant's picture shortly before the lineup was unduly suggestive (cf., People v. Torres, 137 A.D.2d 734; People v. Watts, 130 A.D.2d 695). Similarly, the evidence regarding the composition and presentation of the lineup, including photographs of the defendant and the five fillers as they appeared to the viewer, supports the hearing court's determination that the lineup procedure was not suggestive (see, e.g., People v. Fisher, 143 A.D.2d 1037). Hence, we agree with the court's finding that the complainant's in-court identification of the defendant was not the product of improper police identification procedures and, in any event, was supported by an independent source arising from the complainant's observations of the defendant during the commission of the crime (see, e.g., People v. Wright, 112 A.D.2d 179). Kooper, J.P., Sullivan, Harwood and Balletta, JJ., concur.