Opinion
April 4, 1988
Appeal from the Supreme Court, Kings County (Vinik, J.).
Ordered that the judgment and the order are affirmed.
Under all the circumstances, the lineup procedure was not impermissibly suggestive (see, Stovall v. Denno, 388 U.S. 293; Simmons v. United States, 390 U.S. 377). The record supports the hearing court's conclusion that the fillers appeared to be reasonably similar to the defendant in their physical characteristics (see, People v. Burwell, 26 N.Y.2d 331; People v Wong, 133 A.D.2d 184, lv denied 70 N.Y.2d 878; People v Castillo, 131 A.D.2d 495, lv denied 70 N.Y.2d 749).
We find that no Brady violation (see, Brady v. Maryland, 373 U.S. 83) occurred with respect to the defendant. The record does not indicate that prior to trial the evidence in issue either existed or was in the possession of the prosecution (see, People v. Novoa, 70 N.Y.2d 490, 496; People v. Cwikla, 46 N.Y.2d 434, 441). Furthermore, the exculpatory potential of this evidence was purely speculative (see, People v. Thornton, 130 A.D.2d 78, 82, lv denied 70 N.Y.2d 755; People v. Astwood, 113 A.D.2d 946, 947; People v. Briggs, 81 A.D.2d 1017).
Viewing the evidence in the light most favorable to the People, we find that it was legally sufficient to sustain the verdict (see, People v. Lingenau, 133 A.D.2d 176, lv denied 70 N.Y.2d 801; People v. Odom, 130 A.D.2d 776, lv denied 70 N.Y.2d 935; People v Collins, 123 A.D.2d 779, lv denied 69 N.Y.2d 826). Moreover, upon the exercise of our factual review power we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15). The complaining witness saw the defendant's face at close range for an extended period of at least 40 minutes during the repeated attacks.
We find no reason to disturb the sentence imposed (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions have been examined and have been determined to be without merit or unpreserved for appellate review. Kunzeman, J.P., Eiber, Spatt and Sullivan, JJ., concur.