Opinion
June 1, 1992
Appeal from the Supreme Court, Kings County (Brill, J.).
Ordered that the judgment is affirmed.
A witness's identification of the defendant at the time of his arrest four days after the robbery was spontaneous and not the result of any police procedure (see, People v. Whisby, 48 N.Y.2d 834; People v. Byrd, 173 A.D.2d 549; People v. Griffin, 161 A.D.2d 799, 800-801). The hearing and trial courts properly denied suppression of this witness's identification testimony.
The lineup identification testimony, however, was improperly admitted. Prominent in the description of the defendant was his distinctive flattop haircut, and it was error to conduct a lineup where he alone wore his hair in this style (see, People v. Moore, 143 A.D.2d 1056; cf., People v. Simmons, 158 A.D.2d 950 [distinctive hairstyle did not figure prominently in witness's description]). The suggestiveness could easily have been eliminated by providing the participants with headgear (see, People v. Meatley, 162 A.D.2d 721). In view of the other, untainted identification testimony by two eyewitnesses, however, this error was harmless beyond a reasonable doubt (see, People v. Crimmins, 36 N.Y.2d 230, 241-242).
We have considered the defendant's remaining contentions and find them to be without merit. Lawrence, J.P., Eiber, O'Brien and Copertino, JJ., concur.