Opinion
May 10, 1993
Appeal from the Supreme Court, Kings County (Rienzi, J.).
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial and due process when he was asked to smile during the lineup procedure is unpreserved for appellate review (see, CPL 470.05), and, in any event, without merit. All of the participants in the lineup were asked to smile at the complainant's request, after he remembered that the perpetrator had a chipped tooth. He testified that he had recognized the defendant, but that he wanted to make sure, so he asked all of the participants to smile. There is no indication that any of the law enforcement officers acted improperly or that the identification procedure was improperly suggestive (see, Neil v Biggers, 409 U.S. 188; People v Adams, 53 N.Y.2d 241, 249; People v McClarin, 157 A.D.2d 747; People v Wong, 133 A.D.2d 184).
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The defendant's sentence was not excessive (see, People v Delgado, 80 N.Y.2d 780; People v Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Sullivan, J.P., Lawrence, Copertino and Santucci, JJ., concur.