Opinion
July 3, 1989
Appeal from the Supreme Court, Queens County (Di Tucci, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in a light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Contrary to the defendant's contentions, the evidence demonstrated that the complaining witness's in-court identification was based on her opportunity to view her assailant at close range and in an illuminated area during the commission of the crimes which spanned a period of some two hours. Moreover, her testimony that the defendant approached her from behind and pressed a metal object into her back while announcing that he had a gun, was sufficient to establish that he displayed "what appear[ed] to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" within the meaning of Penal Law § 160.10 (2) (b) (see, People v Baskerville, 60 N.Y.2d 374, 381; People v Lopez, 73 N.Y.2d 214). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
Although, as a general rule, it is improper to adduce testimony from a complaining witness that he identified the defendant from a photograph (see, People v Griffin, 29 N.Y.2d 91; People v Caserta, 19 N.Y.2d 18; see also, People v Bolden, 58 N.Y.2d 741), an exception is available where defense counsel opens the door to this inquiry during his cross-examination of the witness (see, People v Smith, 133 A.D.2d 863, 864, lv denied 71 N.Y.2d 903; People v Giallombardo, 128 A.D.2d 547, 548, lv denied 69 N.Y.2d 1004). Hence, it was not improper for the prosecutor to elicit clarifying testimony from the complaining witness, on redirect examination, that she had identified the defendant from a photograph since defense counsel opened the door to this area of inquiry by creating the misimpression that the complaining witness was unable to make a photographic identification of the defendant.
In addition, the inadvertent destruction of the "rape kit" does not provide a basis for reversal (see, People v Allgood, 70 N.Y.2d 812; see also, Arizona v Youngblood, 488 US ___, 109 S Ct 333). Under the circumstances, the court did not err in refusing to instruct the jury that it could draw an adverse inference against the People due to the failure to preserve the evidence secured from the complainant (see, People v Allgood, supra; People v Morales, 141 A.D.2d 567, lv denied 72 N.Y.2d 922).
We have reviewed the defendant's remaining contentions, including those raised by his supplemental pro se brief and his claim of excessive sentence, and find them to be without merit. Thompson, J.P., Lawrence, Balletta and Rosenblatt, JJ., concur.