Opinion
November 5, 1990
Appeal from the Supreme Court, Kings County (Miller, J.).
Ordered that the judgment is affirmed.
The defendant contends that the lineup was tainted because the detective told the two witnesses that he would be trying to apprehend the suspect and that when and if he did they would view a lineup. We disagree. The suggestion of a law enforcement official to a witness that the person identified in a photograph will be in a lineup does not by itself give rise to a substantial likelihood of misidentification (see, People v. Rodriguez, 64 N.Y.2d 738, 740-741; People v. Bolling, 142 A.D.2d 733; People v. Ballard, 140 A.D.2d 529; People v. Thomas, 133 A.D.2d 867). Similarly, in the case at bar, the detective's comment did not give rise to a substantive likelihood of misidentification. We also find that the lineup was not unduly suggestive (see, People v. Scott, 114 A.D.2d 915).
The testimony of the defendant's accomplice regarding defendant's prior criminal activity and drug use was proper since it was relevant to show his motive (see, People v. Alvino, 71 N.Y.2d 233; People v. Molineux, 168 N.Y. 264, 293; People v. Velez, 159 A.D.2d 665; People v. Johnson, 155 A.D.2d 924, 925). Moreover, in light of the overwhelming evidence of defendant's guilt, any error was harmless (see, People v. Crimmins, 36 N.Y.2d 230, 242).
The defendant's claim that he was denied the effective assistance of counsel in choosing to reject a plea agreement and proceed to trial is based on matters dehors the record and is not reviewable on this appeal (see, People v. Hamlin, 153 A.D.2d 644; People v. Walker, 152 A.D.2d 644; People v. Reyes, 150 A.D.2d 620).
Finally, the defendant's remaining allegations of error are unpreserved for appellate review or without merit, or the errors are harmless beyond a reasonable doubt (see, CPL 470.05; People v. Hawkins, 55 N.Y.2d 474, cert. denied 459 U.S. 846; People v. Bailey, 155 A.D.2d 262; People v. Patterson, 106 A.D.2d 520; People v. Smith, 100 A.D.2d 857, 858; People v. Crimmins, 36 N.Y.2d 230, 241-242, supra). Brown, J.P., Lawrence, Kunzeman and Kooper, JJ., concur.