Opinion
December 31, 1997
Present — Denman, P.J., Lawton, Wisner, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that Supreme Court erred in denying his suppression motion based upon an impermissibly suggestive photo array. We disagree. The photo array contains photographs of men with similar physical features ( see, People v. Burns, 186 A.D.2d 1015, 1016, lv denied 81 N.Y.2d 837; see also, People v. Gray, 186 A.D.2d 1058, lv denied 81 N.Y.2d 840). Moreover, there is no "characteristic of one picture [that] draws the viewer's attention to that picture, indicating that the police [were urging] a particular selection" ( People v. Emmons, 123 A.D.2d 475, 476, lv denied 69 N.Y.2d 827; see, People v. Rogers [appeal No. 1], 245 A.D.2d 1041 [decided herewith]).
We reject defendant's contention that the comment, "Oh, yeah, that's him", by the victim's boyfriend after the victim had viewed the photo array and identified defendant improperly tainted the victim's subsequent lineup identification of defendant ( see generally, People v. Rodriguez, 64 N.Y.2d 738; People v. Simmonds, 182 A.D.2d 650, lv denied 80 N.Y.2d 910). We note that the victim knew defendant and that the victim's boyfriend was not present during the rape. In any event, the lineup identification of defendant by the victim two months after she identified him in the photo array was sufficiently attenuated in time to nullify any possible taint ( see, People v. Smith, 140 A.D.2d 647, lv denied 72 N.Y.2d 961; see also, People v. Lee, 207 A.D.2d 953, 954, lv denied 85 N.Y.2d 864; People v. Thomas, 161 A.D.2d 543, lv denied 76 N.Y.2d 866).
We have reviewed defendant's remaining contentions and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J. — Rape, 1st Degree.)