Opinion
July 16, 1993
Appeal from the Monroe County Court, Egan, J.
Present — Callahan, J.P., Green, Pine, Fallon and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We agree with defendant that County Court erred in admitting testimony from a police officer that improperly bolstered an eyewitness's identification of defendant (see, People v. Bayron, 66 N.Y.2d 77, 81; People v. Johnson, 57 N.Y.2d 969, 970; People v. Marks, 182 A.D.2d 1122; People v. Lomack, 174 A.D.2d 1037). We conclude, however, that the error was harmless in light of the strong and unequivocal identification testimony given by the eyewitness (see, People v. Crimmins, 36 N.Y.2d 230, 242; People v. Marks, supra; People v. Lomack, supra).
Defendant has not preserved for our review his contention that the admission of a photograph of him taken approximately one hour after his arrest constituted improper bolstering (see, CPL 470.05). Were we to address that issue, we would find it to be lacking in merit. Two prosecution witnesses testified that defendant had blond hair when the crimes were committed and that the color of his hair was darker at the time of trial. Under those circumstances, it was not error to admit the photograph because it was relevant to the issue of defendant's changed appearance since the occurrence of the crimes (see, People v Logan, 25 N.Y.2d 184, 195, cert denied 396 U.S. 1020, rearg dismissed 27 N.Y.2d 733).
Further, we reject defendant's contention that the second showup should have been suppressed (see, People v. Duuvon, 77 N.Y.2d 541; People v. Slade, 174 A.D.2d 639, lv denied 78 N.Y.2d 974; People v. Torres, 169 A.D.2d 584, 585, lv denied 77 N.Y.2d 911). Finally, the trial court was under no obligation to seek defendant's affirmative waiver of his right to testify when the defense rested without calling any witnesses (see, People v Burroughs, 191 A.D.2d 956; People v. Dougherty, 190 A.D.2d 989).