Opinion
January 25, 1988
Appeal from the Supreme Court, Queens County (Farlo, J., Balbach, J.).
Ordered that the judgment is affirmed.
The defendant challenges on several grounds the hearing court's denial of that branch of his omnibus motion which was to suppress identification testimony. First, the defendant claims that because of an alleged delay in his arraignment on an unrelated criminal complaint, we should find that formal prosecutorial proceedings had been initiated requiring the presence of counsel at the lineup. This claim is without merit. There is nothing in the record to suggest that the defendant's arraignment on the unrelated criminal charges was unduly delayed. Further, since no formal prosecutorial proceedings had yet been initiated with respect to the instant charges, the defendant had no right to have counsel present at the investigatory lineup (see, People v Hawkins, 55 N.Y.2d 474, rearg denied sub nom. People v Laffosse, 56 N.Y.2d 1032, cert denied 459 U.S. 846; People v Mosley, 135 A.D.2d 662; People v Hernandez, 122 A.D.2d 856, lv denied 69 N.Y.2d 712).
Second, the defendant argues that a remark by the police to the two witnesses, prior to their viewing of the lineup, that they had arrested two men who would be among the individuals exhibited, rendered the lineup impermissibly suggestive. This remark, which merely "informed the complainant that the police had picked up a suspect, not necessarily the person who robbed him", was not improper (People v Warner, 125 A.D.2d 430, 431, lv denied 69 N.Y.2d 887; People v Hernandez, supra).
The defendant further raises the claim that the police lacked the requisite probable cause to arrest him and that therefore, the pretrial identification should have been suppressed as being tainted by the unlawful arrest. However, having failed to raise this claim before the hearing court, the defendant has not preserved it for appellate review (CPL 470.05; People v Warner, supra).
Nor do we find that the lineup was impermissibly suggestive or created a substantial likelihood of irreparable misidentification. The fill-ins for the lineup were sufficiently similar in appearance to the defendant such that the viewer would not have been oriented toward selecting the defendant as a participant in the crimes charged (see, People v Rodriguez, 124 A.D.2d 611; People v Mason, 123 A.D.2d 720, lv denied 69 N.Y.2d 714). There is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance (People v Rodriguez, supra).
Upon the exercise of our factual review power, we are satisfied that the evidence established the defendant's guilt beyond a reasonable doubt, and that the verdict was not against the weight of the evidence (CPL 470.15).
The defendant charges that numerous instances of prosecutorial misconduct and trial court errors deprived him of a fair trial. We need not address the majority of the claims of prosecutorial misconduct because, having failed to raise any objection thereto at trial, the defendant has failed to preserve such claims for our review (CPL 470.05) and we decline to consider these claims in the interest of justice. To the extent that the defendant's contentions in this regard were preserved, we do not believe that the prosecutor's remarks operated to deprive the defendant of a fair trial.
The defendant claims that the prosecutor's opening statement was inadequate because it did not substantially link him to the crimes charged in the indictment. "[A]bsent bad faith nor undue prejudice, a trial will not be undone for deficiencies in an opening statement" (People v Watson, 121 A.D.2d 487, 488, lv denied 68 N.Y.2d 818). Not only do we find no insufficiency in the opening, but also neither bad faith nor prejudice is evident upon this record.
The defendant also asserts that the trial court's failure to strike the testimony of the complainant Harry Zarin when he failed to respond "in a fair and forthright manner" to questions directed to him during cross-examination deprived him of a fair trial. The trial court noted on the record that Mr. Zarin was a difficult witness and admonished him. The court's action was sufficient to cure whatever harm the defendant may have suffered by the conduct of the witness (see, People v Berg, 59 N.Y.2d 294, 299; People v Jones, 120 A.D.2d 747, 748; cf., People v Beaman, 122 A.D.2d 848, 849, lv denied 68 N.Y.2d 809).
Contrary to the defendant's contention, we do not believe that the concurrent sentences of 8 1/3 to 25 years on each of the burglary and robbery convictions and 2 1/3 to 7 years on the assault conviction, which were to run consecutively to the sentence imposed upon a conviction under indictment No. 3344/83 and to any parole owed upon a North Carolina conviction were excessive. Given the defendant's lengthy criminal history and the violent nature of the crimes charged, the sentences imposed were a proper exercise of discretion and we decline to disturb them.
We have considered the defendant's remaining contentions, including those raised in his pro se supplemental brief, and find them to be either unpreserved for appellate review or without merit. Thompson, J.P., Lawrence, Eiber and Spatt, JJ., concur.