Opinion
December 16, 1985
Appeal from the Supreme Court, Queens County (O'Dwyer, J.).
Judgment affirmed.
There is no merit to defendant's contention that a photograph identification by an eyewitness was impermissibly suggestive simply because a physical lineup, the preferred procedure, was not employed. A photographic identification is a proper method of identification (People v Brown, 114 A.D.2d 855; People v Russo, 52 A.D.2d 62; People v Dibble, 46 A.D.2d 829). The use of an array of six photographs is constitutionally permissible where defendant's photograph is not distinctive (see, People v Rolston, 109 A.D.2d 854). Finally, the witness in the instant case had ample opportunity to view the defendant both prior to and during the commission of the crime; thus there was an independent basis for an accurate in-court identification (see, People v Malphurs, 111 A.D.2d 266; People v Rolston, supra). Mollen, P.J., Thompson, Niehoff and Eiber, JJ., concur.