Opinion
November 13, 1981
Appeal from the Monroe County Court, Barr, J.
Present — Simons, J.P., Hancock, Jr., Callahan, Doerr and Denman, JJ.
Judgment unanimously affirmed. Memorandum: Defendant has been convicted by a jury of rape, first degree, attempted robbery, first degree, and assault, third degree. The charges arose out of an incident during which three men forced their way at gunpoint into the apartment of a mentally retarded couple and held them hostage for an hour while they raped the female victim, assaulted the male victim and attempted to rob them. On this appeal defendant raises three points. First, he contends that the lineup at which both victims identified defendant was unduly suggestive because of the height of the participants and the informality of the proceedings. We hold otherwise. The height differential was not significant because the three intruders were of different height and while the victims knew the lineup contained a suspect, they did not know which suspect. Furthermore, the record does not show any prejudice to defendant because of the manner in which the lineup was conducted. We agree with defendant that the court erred in receiving bolstering testimony from Officer Cona and also in receiving a prior statement of People's witness Smith to impeach his trial testimony (see CPL 60.35; People v. Fitzpatrick, 40 N.Y.2d 44). In view of the strong evidence, however, that the crime was committed and that defendant was at the apartment house the day of the crime and participated in it, we deem the errors harmless.