Opinion
December 11, 1995
Appeal from the Supreme Court, Queens County (Corrado, J.).
Ordered that the judgment is affirmed.
We reject the defendant's contention that the indictment should be dismissed by virtue of the People's failure to disclose to the Grand Jury evidence of the initial photographic misidentification of the perpetrator by the two complainants, since the subject evidence was not entirely exculpatory and would not have materially influenced the Grand Jury (see, People v Valles, 62 N.Y.2d 36; People v Liddell, 181 A.D.2d 795; People v Kaba, 177 A.D.2d 506; People v Kaminski, 156 A.D.2d 471; People v Lloyd, 141 A.D.2d 669).
Likewise, the People's failure to preserve a tape recording of a telephone call made by the complainants to the 911 emergency line following the incident, in violation of the Rosario rule (see, People v Rosario, 9 N.Y.2d 286), did not warrant dismissal of the indictment (see, People v Banch, 80 N.Y.2d 610; People v Kelly, 62 N.Y.2d 516; People v Gibbs, 211 A.D.2d 641). The sanction imposed by the court was appropriate under the circumstances.
We discern no basis to disturb the hearing court's determination that the lineup procedure was not tainted by suggestiveness, inasmuch as the defendant has failed to demonstrate "a substantial likelihood of misidentification" (People v Jacobi, 159 A.D.2d 308; see, People v Chipp, 75 N.Y.2d 327; see also, People v Stokes, 156 A.D.2d 401; People v Rodriguez, 124 A.D.2d 611).
The court did not improvidently exercise its discretion by declining to permit the jury to visit the scene of the crime (see, CPL 270.50; People v Kaufman, 156 A.D.2d 718; People v Basora, 151 A.D.2d 588).
The sentence imposed was not excessive (see, People v Suitte, 90 A.D.2d 80).
We have examined the defendant's remaining contentions and find them to be without merit. Balletta, J.P., Thompson, Joy and Goldstein, JJ., concur.