Opinion
October 14, 1986
Appeal from the County Court, Nassau County (Thorp, J.).
Ordered that the judgment is affirmed.
We have reviewed the evidence presented at the pretrial hearing and conclude that the branch of the defendant's motion which was to suppress the identification testimony of the three main prosecution witnesses was properly denied. The fill-ins for both the photographic array and the lineup were sufficiently similar in appearance to the defendant such that no characteristic or visual clue would have oriented the viewer towards selecting the defendant as a participant in the crime (see, People v Cunningham, 110 A.D.2d 708). In addition, the lineup was not tainted by the fact that the defendant's name was handwritten on the back of the photograph selected by the witnesses. Notwithstanding the fact that each witness testified that the other participants in the crime referred to the defendant by his name, the witnesses did not see the back of the photographs until after they had selected the defendant's picture. Moreover, because the lineup was not conducted until more than two months after the use of the photographic array, any possible bolstering effect which could have resulted from the fact that the witnesses saw the defendant's name on the back of the selected photograph was vitiated (see, People v Chamberlain, 96 A.D.2d 959). Thompson, J.P., Weinstein, Rubin and Spatt, JJ., concur.