Opinion
December 5, 1991
Appeal from the Supreme Court, Bronx County (George Covington, J.).
Defendant argues that the lineup conducted at the precinct house was suggestive, on the ground that the complainant testified that he was told by the police officer conducting the hearing that the person whose photograph he had selected from a photographic array would be in that lineup. Although the suppression court credited the police officer's testimony that no such statement was made, defendant would have this court make new factual determinations, contrary to those made by the motion court, and contrary to the general rule that the hearing court's factual determinations are entitled to great weight. (People v Benitez, 162 A.D.2d 100.) We discern no basis to do so, as the record indicates that the complainant's testimony as to what he was told was ambiguous and contradictory, and may well have been the result of mistake or confusion. Assuming arguendo that the complainant had been so advised, this circumstance alone would not warrant a finding that the lineup was suggestive. (People v Goodman, 167 A.D.2d 352, lv denied 77 N.Y.2d 878.) Further, we find that the lineup photograph belies defendant's claim that he was physically larger, or that his head was significantly bigger than the other individuals in the lineup.
Defendant's argument that the court considered extraneous matters at sentencing, including the facts underlying two cases which had been dismissed, is unpreserved for appellate review as a matter of law (CPL 470.05). We decline to reach the issue in the interest of justice. We note that a court may not sentence a defendant based upon extraneous crimes unless there is evidence that defendant committed those crimes (People v Villanueva, 144 A.D.2d 285, lv denied 73 N.Y.2d 897). Review of this issue is precluded by the failure to make a proper record at sentencing.
Concur — Sullivan, J.P., Milonas, Wallach, Kupferman and Asch, JJ.