Opinion
November 21, 1988
Appeal from the Supreme Court, Kings County (Ramirez, J.).
Ordered that the judgment is affirmed.
As the defendant did not object to the introduction into evidence of a photograph of a lineup, his claim with respect thereto is unpreserved for appellate review (see, CPL 470.05; People v. Pellegrino, 60 N.Y.2d 636). In any event, a witness who observes a defendant at the scene of a crime and later observes and recognizes him as the perpetrator may testify as to that subsequent out-of-court identification, provided that the subsequent identification is constitutionally valid (see, CPL 60.30; People v. Smalls, 121 A.D.2d 579; People v. Whipset, 80 A.D.2d 986). The introduction of a photograph of such a lineup was not prejudicial as the defendant was previously known to two of the prosecution eyewitnesses and identification was not in issue (see, People v. Ingram, 110 A.D.2d 852, lv denied 66 N.Y.2d 615). Bracken, J.P., Kunzeman, Weinstein and Kooper, JJ., concur.