Opinion
March 4, 1991
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the judgment is affirmed.
An identification procedure violates due process only if it is conducted in such a manner that there is "`a very substantial likelihood of irreparable misidentification'" (Neil v Biggers, 409 U.S. 188, 198, quoting Simmons v United States, 390 U.S. 377, 384). In the case at bar, there is no "substantial likelihood" that the complainant misidentified the defendant; therefore, suppression of the identification testimony was properly denied (see, People v Prochilo, 41 N.Y.2d 759). We also find that the in-court identification by another eyewitness was properly admitted since the witness knew the defendant prior to the incident (see, People v Gissendanner, 48 N.Y.2d 543, 552; People v Lang, 122 A.D.2d 226). Further, the jury instruction pertaining to identification testimony was proper (see, People v Whalen, 59 N.Y.2d 273; People v Floyd, 150 A.D.2d 486; People v Mitchell, 143 A.D.2d 421, 422; cf., People v Daniels, 88 A.D.2d 392). We have considered the defendant's remaining contentions and find them to be without merit. Kunzeman, J.P., Kooper, Harwood and O'Brien, JJ., concur.