Opinion
July 20, 1987
Appeal from the Supreme Court, Queens County (Eiber, J.).
Ordered that the judgment is affirmed.
The totality of the circumstances surrounding the pretrial identification of the defendant by the complainant supports the hearing court's finding that the procedure was not so suggestive or unfair as to violate due process (see, People v. Blake, 35 N.Y.2d 331, 340; cf., People v. Osgood, 89 A.D.2d 76). In any event, the record clearly shows that there was an independent source for the eyewitnesses' identification of the defendant (see, Manson v Brathwaite, 432 U.S. 98; People v. Owens, 131 A.D.2d 602; cf., People v. Lane, 102 A.D.2d 829, appeal dismissed 63 N.Y.2d 865).
As to the defendant's contention that he was prejudiced by the trial court's failure to marshal the evidence, this issue was not preserved for appellate review (see, People v. Berkman, 124 A.D.2d 590, 592, lv denied 69 N.Y.2d 824). The record indicates that the defense attorney as well as the prosecutor consented when the Trial Judge informed them during a discussion of the proposed charge to the jury that the evidence would not be marshaled. In any event, we find no merit to this contention.
We have reviewed the defendant's remaining contentions and have determined that they are without merit. Lawrence, J.P., Kunzeman, Kooper and Spatt, JJ., concur.