Opinion
November 5, 1992
Appeal from the County Court of Ulster County (Vogt, J.).
Defendant contends on appeal that procedures used to identify him were unduly suggestive and require reversal. We disagree. Our examination of the photographic array reveals that there was a sufficient degree of resemblance among the participants to avoid undue suggestiveness (see, People v Butts, 154 A.D.2d 729, lv denied 75 N.Y.2d 867). The fact that the victim had previously tentatively identified defendant in a more extensive mug shot album does not per se invalidate the identification procedures (see, People v Cordilione, 159 A.D.2d 864, lv denied 76 N.Y.2d 786). Here, the fact that different photographs of defendant were used in the two procedures and that defendant was the only person identified in both procedures convince us that the photographic array was not unduly suggestive (see, supra; People v Malphurs, 111 A.D.2d 266, lv denied 66 N.Y.2d 616). Finally, even were we to find the photographic identification suggestive, given that County Court correctly found an independent basis for the victim's in-court identification of defendant based upon the victim's close-range observation of defendant during the commission of the crime, we find that any such error was harmless (see, People v Adams, 53 N.Y.2d 241).
Mikoll, J.P., Levine, Mercure, Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed.