Opinion
March 3, 1986
Appeal from the Supreme Court, Kings County (Greenberg, J.).
Judgment affirmed.
On September 11, 1982, the complainant was raped at knifepoint at about 11:30 A.M. Thereafter, she positively identified the defendant as her assailant, initially from photographs, and subsequently in a lineup.
Contrary to the defendant's contentions on this appeal, we agree with the suppression court's determination that the photographic identification procedure was not impermissibly suggestive or conducted in such a manner as to substantially increase the likelihood of misidentification. The photographic array shown to the victim did contain at least two different pictures of the defendant. We note that the victim stated that the first photograph looked like the rapist, but she could not be sure because the individual in the photograph was wearing a neckbrace, making him look heavier. She then positively identified a second photograph of the defendant in which he wore no neckbrace (cf. People v. Hall, 81 A.D.2d 644; People v Tindal, 69 A.D.2d 58). Thus, the complainant's photographic identification was apparently based upon her own observations.
The defendant does not challenge the lineup procedure, and there is also "no evidence that, at the lineup, the complaining witness was merely identifying the man in the photograph rather than the man who" raped her (People v. McMickel, 105 A.D.2d 851, 852).
As to the defendant's claim that the prosecution violated the rules enunciated in Brady v. Maryland ( 373 U.S. 83), this issue was not properly preserved for appellate review (see, CPL 470.05; People v. Boyd, 58 N.Y.2d 1016). In any event, we find no basis in the record to conclude that the evidence belatedly sought by the defendant was ever available or known to the prosecution, or that it was in any way exculpatory.
In addition, we conclude that the suppression court properly admitted into evidence an audiotape of the lineup made by the Assistant District Attorney, who identified the tape at the hearing and testified that it was a fair and accurate reproduction of the conversations which took place, and that there had been no tampering with it. Under these circumstances, it was not necessary for the prosecution to establish a chain of custody (see, People v. Tayeh, 96 A.D.2d 1045, 1046).
We have reviewed the defendant's remaining contentions and find them to be without merit. Gibbons, J.P., Thompson, Brown and Weinstein, JJ., concur.