Opinion
August 1, 1994
Appeal from the Supreme Court, Kings County (Aiello, J.).
Ordered that the judgment is affirmed.
There is sufficient evidence to support the hearing court's determination that neither the photographic array viewed by a witness on February 16, 1989, nor the lineup conducted on December 19, 1989, was impermissibly suggestive. Despite the fact that the defendant failed to preserve this issue for appellate review (see, People v. Russell, 79 N.Y.2d 1024), we find that any potential for suggestiveness by the two viewings was attenuated by the over ten-month period between the viewing of the photographic arrays and the lineup (see, People v. Floyd, 122 A.D.2d 71).
Where there has been a showing that divulging a witness's name raises a justifiable fear for his or her own safety, the burden of establishing the materiality of the pretrial revelation of the witness's name shifts to the defendant (see, People v. Remgifo, 150 A.D.2d 736). In this case, the People established that there was a manifest danger if a certain witness's identity was divulged and the defense was provided with all of her statements and prior criminal history following the pretrial hearings. The defendant made no showing of any necessity for ascertaining her name. Further, the hearing court ruled that the defense attorneys might interview her at the District Attorney's office without their clients present. As such, no conceivable prejudice inured to the defendant who, even with the benefit of hindsight following a trial, cannot articulate a reason for his need to have known the witness's name prior to trial. We, therefore, find no error in the court's ruling.
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 (see, People v. Breland, 83 N.Y.2d 286). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15).
We have considered the remaining contentions raised by the defendant, including his claim that the sentence imposed is excessive, and find that they are either unpreserved for appellate review or without merit. Sullivan, J.P., Balletta, Joy and Friedmann, JJ., concur.