Opinion
March 10, 1989
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Dillon, P.J., Callahan, Boomer, Green and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Several of the issues raised by defendant on this appeal have been resolved in the codefendant's appeal (People v. Brown, 138 A.D.2d 933). Upon our review of the record, we find no reason to disturb the hearing court's determination that the pretrial photo array and lineups were not impermissibly suggestive (see, People v Sheirod, 124 A.D.2d 14, 19, lv denied 70 N.Y.2d 656). These findings are entitled to great weight (People v. Prochilo, 41 N.Y.2d 759, 761) and are fully supported by the record.
The motion for a severance was properly denied. An application for a severance is addressed to the sound discretion of the trial court (People v. Cruz, 66 N.Y.2d 61, 69, cert granted 476 U.S. 1168, revd 481 U.S. 186). Defendant sought a severance because codefendant's counsel sought to introduce a composite drawing of the codefendant during his cross-examination of the victim. The court found no prejudice to defendant and denied this motion for a severance or a mistrial. The ruling did not impair any substantial right of the defendant and was a proper exercise of the court's discretion.
Finally, the testimony by the People's expert witness about hair and fiber comparisons was not speculative but rather was intended "to signify a probability supported by some rational basis" (Matter of Miller v. National Cabinet Co., 8 N.Y.2d 277, 282, mot to amend remittitur granted 8 N.Y.2d 1025; see also, Matott v. Ward, 48 N.Y.2d 455, 461; People v. Bethune, 105 A.D.2d 262, 272). Although the expert's opinion had only slight probative value, it was not so prejudicial that its admission into evidence constituted an abuse of discretion (see, People v Collins, 123 A.D.2d 779, lv denied 69 N.Y.2d 826).