Opinion
December 4, 1995
Appeal from the Supreme Court, Kings County (Pincus, J.).
Ordered that the judgment is affirmed.
We agree with the hearing court's determination that the pretrial identification procedures used by the police in this case were not suggestive. Each witness independently viewed between 1,800 and 2,000 photographs and selected only photographs of the defendant. The photographic procedure, therefore, could in no way be termed suggestive (see, People v Wiredo, 138 A.D.2d 652).
As to the lineup, the failure of the police to preserve a photograph of the lineup created a presumption of suggestiveness (see, People v Simmons, 158 A.D.2d 950; People v Foti, 83 A.D.2d 641). That presumption was rebutted, however, by the other testimony and evidence in the record which demonstrated that the procedures utilized were not impermissibly suggestive (see, People v Simmons, supra). Here, photographs of the lineup fillers were taken approximately 10 months after the original lineup was held, and the police officer who was present at the lineup testified about the height and weight of the fillers, whether they had gained or lost any weight between the lineup and the reconstruction, and their positions in the lineup.
The defendant's remaining contentions are, for the most part, either unpreserved for appellate review or without merit. To the extent there were any errors, they were harmless. Santucci, J.P., Altman, Friedmann and Goldstein, JJ., concur.