Opinion
January 25, 1990
Appeal from the Supreme Court, New York County, John Bradley, J., Thomas Galligan, J.
There is no merit to defendant's contention concerning Detective Robert Bava's statement to the witness after the lineup. This issue was never raised below and is, thus, unpreserved for review. However, even were we to reach defendant's claim on this matter, it is noted that the argument is unpersuasive. The officer in no manner prompted the witness to identify defendant but was merely suggesting that she compare the appearance of the person in the lineup with that of the perpetrator at the time of the assault. Nothing in the record demonstrates that the lineup was tainted or otherwise improperly conducted, and accordingly, defendant's Wade motion was appropriately denied.
The use prior to trial of the photograph of defendant wearing eyeglasses, who, thereby, presumably appeared similar to the way he did at the time of the crime, was to confirm an already existing identification previously found by the hearing court determining independent source to be clear and credible, and consequently, the showing of the picture operated, if anything, to assure that no mistake had been made and an innocent man targeted (see, People v. Morales, 37 N.Y.2d 262, 272). Moreover, the evidence at the hearing clearly established an independent source of the witness's identification and defendant could not, therefore, suffer any prejudice from the viewing of the photograph. The admission of the photograph at trial also did not constitute reversible error. Defendant's appearance had altered since the commission of the crime, and it is not improper to introduce a photograph depicting a suspect's appearance at the time of the incident in question (People v. Logan, 25 N.Y.2d 184, cert denied 396 U.S. 1020).
We have considered defendant's remaining assertions and find them to be without merit.
Concur — Sullivan, J.P., Ross, Carro, Milonas and Rosenberger, JJ.