Opinion
March 2, 1987
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the judgment is affirmed.
In light of the in-court identifications of the defendant as one of the perpetrators by three eyewitnesses, each of whom had an adequate opportunity to view the perpetrators, and viewing the evidence in the light most favorable to the People, the defendant's guilt of the crimes charged was proven beyond a reasonable doubt (see, People v. Bauer, 113 A.D.2d 543).
As a general rule, it is improper to admit testimony from a complaining witness that he identified the defendant from a photograph (see, People v. Christman, 23 N.Y.2d 429; People v Baker, 23 N.Y.2d 307; People v. Brewster, 100 A.D.2d 134, affd 63 N.Y.2d 419). An exception to this general rule arises where the defendant opens the door to this inquiry during his cross-examination of the witness (see, People v. Langert, 105 A.D.2d 845; People v. Brown, 62 A.D.2d 715, affd 48 N.Y.2d 921). Thus, it was not improper for the prosecutor to elicit from a complaining witness, on redirect examination, that he had previously identified the defendant from a photograph. In this instance, the prosecutor was merely seeking to correct the misimpression created by defense counsel during cross-examination regarding the witness's ability to identify the defendant (see, People v. Langert, supra; People v. Brown, supra; see also, People v. Brewster, supra).
The defendant's contention that the trial court erred in failing to give a missing witness charge regarding the defendant's coperpetrator has not been preserved for appellate review (see, CPL 470.05; People v. Borrello, 52 N.Y.2d 952). In any event, no such charge was required, since the witness was equally available to both the prosecution and the defense, and there is no indication that the missing witness's testimony would have been favorable to the People (see, People v. Almodovar, 62 N.Y.2d 126; People v. Rodriguez, 38 N.Y.2d 95; People v. Williams, 112 A.D.2d 177).
We have considered the defendant's remaining contention and find it to be without merit. Mollen, P.J., Mangano, Lawrence and Kunzeman, JJ., concur.