Opinion
January 26, 1987
Appeal from the Supreme Court, Queens County (O'Dwyer, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's claim, the hearing court did not err in denying that branch of his omnibus motion which was to suppress the identification testimony. The defendant failed to establish his ultimate burden of proving that the photographic array was unduly suggestive (see, People v. Berrios, 28 N.Y.2d 361, 367; People v. Jackson, 108 A.D.2d 757). The mere fact that the defendant was the only one depicted in the photographic array with an earring did not indicate that his picture "stood out from the rest" (People v. Coleman, 114 A.D.2d 906).
Finally, we reject the defendant's claim that the verdict was against the weight of the evidence. To the contrary, the testimony of the three eyewitnesses to the crime was clearly sufficient to support the verdict and, in fact, overwhelmingly established the defendant's guilt beyond a reasonable doubt. Brown, J.P., Rubin, Kooper and Sullivan, JJ., concur.