Opinion
September 10, 1992
Appeal from the Supreme Court, New York County (Edwin Torres, J.).
On June 13, 1989, each of two victims of defendant's criminal activity independently went to the Manhattan Catch Unit, where thousands of photographs are kept of everyone ever arrested in Manhattan. The transit police detective assigned to the investigation was informed that each victim had selected defendant's photograph from a vast array. Lineups were subsequently held, and defendant was selected by each of the victims as the perpetrator. At the Wade hearing, defendant challenged only the fairness of the lineup. Indeed, he did not even pose any questions regarding the photographic identifications, or attempt to call any witnesses on that issue. He has therefore waived any claim he might have that the availability of first-hand testimony regarding the photo identification procedure placed an initial burden on the People to demonstrate the regularity of that procedure. Our decision in People v Jones ( 157 A.D.2d 487) does not compel a different result.
Defendant's claim that the trial court unfairly limited cross-examination of the prosecution witnesses is unpreserved. In any event, the record reflects that the court merely attempted to curtail irrelevant material and unnecessary repetition. We find no merit to defendant's arguments with respect to the sentence, which was not excessive.
The People concede, and we agree, that the appeal must be held in abeyance for a hearing on defendant's speedy trial motion, since the People never formally responded to defendant's motion papers (People v Santos, 68 N.Y.2d 859).
Concur — Murphy, P.J., Carro, Wallach, Ross and Rubin, JJ.