Opinion
June 29, 1993
Appeal from the Supreme Court, Bronx County (Frank Torres, J.).
A visual examination of the photographic array and lineup photos indicates that each contained fillers of the same general physical appearance as defendant. Although the photographic array contained a photograph of a person known to the complainant, this did not render the array unduly suggestive (see, People v Floyd, 173 A.D.2d 211, 212, lv denied 78 N.Y.2d 966). Additionally, although defendant was the only subject in the photo array displaying gold chains around his neck, this, too, did not render the array unduly suggestive, as there was no evidence that the perpetrator wore gold chains, so as to draw undue attention to defendant (see, e.g., People v. Torres, 182 A.D.2d 587, 588, lv denied 80 N.Y.2d 897).
Defendant failed to preserve his current claim that his mid-trial severance motion should have been granted on the ground of antagonistic defenses, as he did not move before the trial court for severance on that ground (People v. Russell, 71 N.Y.2d 1016). In any event, severance was not required as the core of the defenses offered by defendant and his codefendant was the same (People v. Mahboubian, 74 N.Y.2d 174, 184). Defendant's claim that severance was required because he was improperly limited in his cross-examination of the codefendant is likewise meritless. The trial court properly exercised its discretion in precluding defendant's cross-examination of the codefendant regarding an uncharged crime allegedly committed by the codefendant, as there was no factual showing that the codefendant was connected to that crime (People v. Simpson, 109 A.D.2d 461, appeal dismissed 67 N.Y.2d 1026).
We have considered defendant's additional arguments and find them to be without merit.
Concur — Rosenberger, J.P., Kupferman, Ross and Kassal, JJ.