Opinion
March 17, 1995
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Denman, P.J., Green, Fallon, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of grand larceny in the third degree (Penal Law § 155.35) and unauthorized use of a vehicle in the third degree (Penal Law § 165.05), arising out of the theft of a van.
At a suppression hearing, prior to trial, the prosecutor failed to offer any evidence of the complainant's identification of defendant on the day of the crime. Defense counsel requested that any identification testimony by the complainant be suppressed. The prosecutor responded that he did not intend to proffer any evidence of an identification procedure and that the complainant could identify only defendant's clothing. The suppression court denied defendant's motion.
We conclude that the court did not err in denying the motion because the People offered "`resemblance'" testimony by the complainant, not "`identification'" testimony (People v Sanders, 108 A.D.2d 316, 319, affd 66 N.Y.2d 906).