Opinion
December 10, 1984
Appeal from the Supreme Court, Kings County (Pincus, J.).
Judgment affirmed.
We agree that the failure of the People to preserve a record of two photographic arrays presented to the victim within a month of the robbery gave rise to an inference that the arrays were suggestive (see People v. Putnam, 55 A.D.2d 608; People v Nelson, 79 A.D.2d 171, 174, cert den sub nom. Usher v. New York, 454 U.S. 869; United States v. Sanchez, 603 F.2d 381, 385; cf. People v. Foti, 83 A.D.2d 641), and that the inference of suggestiveness was not rebutted.
Notwithstanding the presumptive suggestiveness of the photographic identifications, the lineup identification, conducted two months later, was sufficiently attenuated and was not itself suggestive. The evidence of the victim's opportunity to view the defendant during the crime was sufficient to establish an independent basis (see People v. Adams, 53 N.Y.2d 241; cf. People v. English, 75 A.D.2d 981). Accordingly, the in-court identification and evidence of the lineup identification were properly admitted.
We have considered defendant's remaining contentions and find them to be without merit. Titone, J.P., Gibbons, Bracken and Weinstein, JJ., concur.