Opinion
April 1, 1983
Appeal from the Supreme Court, Monroe County, Boomer, J.
Present — Dillon, P.J., Hancock, Jr., Doerr, Denman and Moule, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from convictions after a jury trial for two counts of rape, first degree, and lesser offenses, defendant urges that the trial court should have suppressed the incourt identification testimony of one Vernell Brown because the photographic array shown to her before trial and admitted into evidence at the Wade hearing was not kept intact for viewing by this court and because Vernell Brown viewed the array in the presence of another potential witness. We disagree. The Wade court's finding that there was an independent basis for Vernell's in-court identification is supported by the evidence (see People v Adams, 53 N.Y.2d 241). We note that the Wade court found the array not to be suggestive and that defendant makes no factual allegations from which we could infer suggestiveness. Also, there is nothing in the record to suggest that Vernell Brown's viewing of the array was anything but inadvertent or that the other witness said or did anything which might have influenced her identification. Defendant raises for the first time on appeal the contention that his arrest was illegal under Payton v New York ( 445 U.S. 573) and that therefore his confession, taken at the station house shortly thereafter, should have been suppressed. He has failed to preserve the issue (see People v Gonzalez, 55 N.Y.2d 887; People v Smith, 55 N.Y.2d 888; People v Norwood, 89 A.D.2d 878) and we see no reason to reach it in the interest of justice. We have examined the other points raised on appeal and find no basis for reversal.