Opinion
December 28, 1987
Appeal from the Supreme Court, Kings County (Broomer, J.).
Ordered that the judgment is affirmed.
The defendant contends, inter alia, that the photo array identification by the complainant was impermissibly suggestive. We disagree. The six-photograph array displayed to the complainant was constitutionally appropriate inasmuch as the defendant's picture did not contain any distinctive characteristics (see, People v Garcia, 115 A.D.2d 617, 618, lv denied 67 N.Y.2d 883; People v Rolston, 109 A.D.2d 854, 855). Additionally, the complainant's identification of the defendant at the felony hearing was not an unduly suggestive procedure. The evidence revealed that the complainant surveyed the entire courtroom prior to selecting the defendant. The defendant had the opportunity to waive his appearance for the purpose of the hearing as he did for the Wade hearing (see, CPL 180.60; People v Cummings, 109 A.D.2d 748; People v Lyde, 104 A.D.2d 957; People v James, 100 A.D.2d 552). Moreover, we agree with the Supreme Court that the complainant had an independent source for his in-court identification of the defendant (see, Neil v Biggers, 409 U.S. 188, 199-200; Manson v Brathwaite, 432 U.S. 98, 114).
The defendant's claim that identification was not proven beyond a reasonable doubt is without merit. Upon the exercise of our factual review power, we are satisfied that the evidence established the defendant's identity as one of the perpetrators beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, CPL 470.15).
We have examined the defendant's remaining contentions, including that the sentence was excessive, and conclude that they are either unpreserved for appellate review or without merit. Mollen, P.J., Lawrence, Weinstein and Kooper, JJ., concur.