Opinion
August 14, 1995
Appeal from the Supreme Court, Queens County (Fisher, J.).
Ordered that the judgment is affirmed.
The defendant contends that the trial court erred by allowing the jury to hear testimony that persons associated with his codefendant had threatened the prosecution's witnesses. We disagree. The record reveals that the trial court carefully instructed the jury that the evidence in question was only to be considered with respect to the codefendant. Because the jury is presumed to follow the court's instructions, any alleged prejudice to the defendant was alleviated (see, People v. Gibbs, 59 N.Y.2d 930, 932; People v. Berg, 59 N.Y.2d 294, 299-300; People v. Brisbane, 203 A.D.2d 89, 90; see also, People v. Dailey, 188 A.D.2d 485).
We find no merit to the defendant's contention that testimony about the lineup identification should have been suppressed because of police misconduct in conducting the lineup. It is well settled that the determination of the suppression court, with its advantages of having seen and heard the witnesses, must be accorded great weight on appeal and should not be disturbed if it is supported by the record (see, People v Prochilo, 41 N.Y.2d 759, 761; People v. Daniels, 190 A.D.2d 858, 859). The record reveals that the defendant chose what number to wear and where to sit at the lineup, that the detective who conducted the lineup did not tell the witness that the robber or robbers would be in the array, and that the witness did not see the defendant before the lineup. Thus, the witness's identification of the defendant at the lineup was not tainted by any misconduct on the part of the police.
Furthermore, the hearing court properly determined that the lineup itself was not so impermissibly suggestive that it created a substantial likelihood of irreparable misidentification (see, People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833; People v. McClarin, 157 A.D.2d 747). Nothing about the lineup suggested that the witness should choose the defendant (see, People v. Smith, 208 A.D.2d 966; People v. Christenson, 188 A.D.2d 659, 660; People v. Ahmed, 173 A.D.2d 546; People v. Henderson, 170 A.D.2d 532, 533).
The defendant's sentence is not excessive (see, People v Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05) or without merit. Rosenblatt, J.P., Copertino, Hart and Friedmann, JJ., concur.