Opinion
January 31, 1992
Appeal from the Monroe County Court, Celli, J.
Present — Denman, P.J., Boomer, Green, Pine and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Although the trial court erred in giving a "no inference" charge to the jury (see, CPL 300.10), the error is harmless given the overwhelming evidence of defendant's guilt (see, People v. Vereen, 45 N.Y.2d 856, 857; People v. Crimmins, 36 N.Y.2d 230, 237). The pretrial identification procedure was not suggestive. Although defendant was labeled as a "suspect" on the back of the photo array folder, the officer who conducted the identification testified that the victim viewed only the front of the folder. The court did not abuse its discretion in granting the People's motion to consolidate the trial of defendant with the trial of the codefendant. The charges against each defendant were similar and arose from the same incident and the proof against each defendant was based on the same evidence (see, CPL 200.20 [b]; [4]). Moreover, defendant did not establish prejudice (see, People v Lane, 56 N.Y.2d 1, 8-10).