Opinion
February 24, 1986
Appeal from the Supreme Court, Queens County (Dubin, J.).
Judgment affirmed.
The failure of the People to preserve a record of several photographic arrays shown to the victims within a week of the robbery gave rise to an inference that the arrays were suggestive (see, People v. Johnson, 106 A.D.2d 469) and that the inference of suggestiveness was not sufficiently rebutted. However, notwithstanding the presumptive suggestiveness of the photographic identifications, the record established a sufficient independent basis for the victims' in-court identifications of the defendant (see, People v. Pleasant, 54 N.Y.2d 972, cert denied 455 U.S. 924; People v. English, 75 A.D.2d 981). The People proved by clear and convincing evidence that both of the victims had an ample opportunity to observe the defendant throughout the course of the robbery, which lasted for approximately 15 to 30 minutes, so as to provide a sufficient independent basis for their in-court identifications (see, People v. Ballott, 20 N.Y.2d 600, 606).
Furthermore, viewing the evidence in the light most favorable to the People, as we are required to do (see, People v. Kennedy, 47 N.Y.2d 196, 203), we find the evidence sufficient to support the jury's finding of guilt since "` any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'" (People v. Contes, 60 N.Y.2d 620, 621, quoting from Jackson v. Virginia, 443 U.S. 307, 319). While there were numerous inconsistencies in the testimony of the People's witnesses, most of them were inconsequential, and the responsibility for resolving questions relating to identification and the credibility of the witnesses lies with the trier of fact (see, People v. Herriot, 110 A.D.2d 851, 852). Once the prosecution has made a prima facie showing of the reliability of the identification of the defendant by the victims it is within the jury's province to assess the weight to be afforded their testimony (People v. Malphurs, 111 A.D.2d 266, 268-269). In this case, after a review of the record, we find the evidence is sufficient in quality and quantity to prove the defendant's guilt beyond a reasonable doubt (see, People v. Gruttola, 43 N.Y.2d 116, 122).
The complaining witnesses' brief references to their previous identifications of the defendant, though improper, do not warrant a reversal of the instant conviction. Because the prosecution failed to give notice pursuant to CPL 710.30 of its intent to offer testimony by a complaining witness relating to her identification of the defendant made at the Wade hearing, this testimony was not permitted into evidence (cf. People v Magazine, 106 A.D.2d 473). The trial court similarly excluded testimony by another complaining witness relating to his previous photographic identification of the defendant. The testimony was immediately stricken from the record, and curative instructions were supplied. In light of the prompt curative action taken by the trial court to mitigate any potential prejudice caused by these passing references, we deem these errors harmless.
Additionally, although the prosecutrix made a technically improper comment in her summation, reversal is not warranted because the comment did not substantially prejudice the defendant's trial (see, People v. Galloway, 54 N.Y.2d 396, 401; People v. Roopchand, 107 A.D.2d 35, affd 65 N.Y.2d 837). We note that the comment presently complained of, whereby the prosecutrix implied to the jury that she was precluded by evidentiary rules from presenting additional inculpatory evidence, was caused largely by the defense counsel's invitation to the jury to speculate as to the reason for the lack of certain evidence. Moreover, the Trial Judge's curative instructions, which in part advised the jury that there had not been any evidence withheld from their consideration, operated to ameliorate any potential prejudice caused by the prosecutor's comments (see, People v. Bailey, 58 N.Y.2d 272, 278; People v Mott, 94 A.D.2d 415, 419). Mangano, J.P., Niehoff, Rubin and Kunzeman, JJ., concur.