Opinion
November 15, 1991
Appeal from the Erie County Court, Rogowski, J.
Present — Doerr, J.P., Boomer, Pine, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: There is no merit to defendant's contention that pretrial identifications of him from photograph arrays and from a lineup were unduly suggestive. Although color photographs and black and white photographs were used in the photographic identification procedure, the manner of their use did not single out the defendant. Four arrays were utilized. One array consisted entirely of color photographs, and the remaining three arrays included only black and white photographs. Defendant's picture appeared in a black and white array. Further, the fill-ins used in the photo arrays and in the lineup procedure were sufficiently similar to defendant in appearance that there was no reasonable possibility that the attention of the crime victims would be drawn to him as the suspect chosen by the police (see, People v. Chipp, 75 N.Y.2d 327, cert denied ___ US ___, 111 S Ct 99; People v. Ballew, 161 A.D.2d 1138, lv denied 76 N.Y.2d 852; People v. Rawlings, 159 A.D.2d 655, lv denied 76 N.Y.2d 741).
While we agree with defendant that it was improper for the court, sua sponte, to reopen the combined Wade-Huntley hearing to receive evidence bearing on whether certain pretrial identification procedures were unduly suggestive and whether defendant's statement was the fruit of an improper arrest (see, People v. Havelka, 45 N.Y.2d 636, 643; People v. Bryant, 37 N.Y.2d 208), the error does not require reversal. The court ultimately suppressed defendant's statement, and defendant was acquitted of those charges involved in the pretrial identifications of defendant in local criminal courts. No evidence regarding a photograph identification procedure conducted on February 1, 1989 was presented at the reopened portion of the hearing or at trial, and sufficient evidence was presented at the initial hearing to support a finding that the lineup procedure was not unduly suggestive. As a result, defendant was not prejudiced by the court's improvident decision to reopen the hearing.
We have examined defendant's other contentions and find them to be without merit.