Opinion
June 9, 1986
Appeal from the County Court, Rockland County (Meehan, J.).
Judgment affirmed.
In reviewing the evidence underlying a criminal conviction, the standard to be applied is whether, after viewing the evidence in the light most favorable to the People, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt (see, People v. Contes, 60 N.Y.2d 620; People v. Herriot, 110 A.D.2d 851). It is well settled that the resolution of questions relating to the credibility of witnesses is a proper function of the trier of fact and should not be overturned lightly on appeal (see, People v. Bussey, 111 A.D.2d 403; People v. Gross, 111 A.D.2d 873). The record shows that the jury, aware of the evidence presented and the discrepancies therein, decided the issue of credibility in favor of the People.
With respect to the trial court's ruling allowing a witness to make an in-court identification of the defendant, we find that such was proper as the pretrial identification procedure employed by the police was not conducive to "a very substantial likelihood of irreparable misidentification" (see, Simmons v. United States, 390 U.S. 377, 384). No photographs of the defendant had been presented in the first array viewed by the witness. The second array, which included two nonidentical photographs of the defendant, contained 128 pictures. No further identification procedures were employed. Considering the above in conjunction with the fact that the police had not, at that time, focused upon the defendant as a particular suspect, the likelihood that the procedure was impermissibly suggestive was significantly diminished (see, People v. Jerome, 111 A.D.2d 874). In any event, the People established, by clear and convincing evidence, an independent basis for an in-court identification of the defendant in that the complainant had ample opportunity, during the course of the crime, to view the defendant in a well-lit area (see, People v. Whisby, 48 N.Y.2d 834; People v. Camacho, 110 A.D.2d 844). We also find that the trial court properly admitted into evidence a photograph of the defendant taken two weeks prior to the robbery as the sole purpose and effect thereof was to establish his appearance on the date of the crime (see, People v. Logan, 25 N.Y.2d 184, cert denied 396 U.S. 1020; People v. Laguer, 58 A.D.2d 610).
The defendant has not preserved for appellate review his contention that the trial court made improper comments (see, CPL 470.05). In any event, the comments were not prejudicial to the defendant but were "a legitimate exercise of the court's prerogative to control the proceedings before it" (see, People v Fernandez, 110 A.D.2d 657, 658; see also, People v. Moulton, 43 N.Y.2d 944; People v. De Jesus, 42 N.Y.2d 519).
Finally, the sentence imposed cannot be termed either harsh or excessive under the facts of this case (see, People v. Farrar, 52 N.Y.2d 302). Rubin, J.P., Lawrence, Kunzeman and Kooper, JJ., concur.