Opinion
February 29, 1988
Appeal from the Supreme Court, Kings County (Tomei, J.).
Ordered that the judgment is affirmed.
We agree with the hearing court that the identification of the defendant by the witness Vicente had a source independent of the suggestive photo array (see, People v Ballott, 20 N.Y.2d 600, 606-607). The evidence at the hearing demonstrated that the area in which the crime took place was well illuminated, and that the witness had a clear and unobstructed view of the defendant's face for a period of 40 to 60 seconds both prior to and during the incident. There is no evidence, moreover, that his attention was focused elsewhere during this time (cf., People v Boyce, 89 A.D.2d 623, 624). The findings of the hearing court are thus amply supported by the record, and we decline to disturb its determination (see, People v Bradley, 129 A.D.2d 720, lv denied 69 N.Y.2d 1001). We further conclude, under all of the circumstances, that the lineup procedure was not unduly suggestive, and that there was therefore no basis upon which to suppress the identification testimony of the witness Lee (see, Manson v Brathwaite, 432 U.S. 98, 114). We note, in this regard, that there is no evidence that the police influenced Lee in her selection of the defendant from the lineup, and that a number of the fillers possessed physical characteristics similar to those specified by the witness in her description of the defendant (see, People v Wong, 133 A.D.2d 184, 185, lv denied 70 N.Y.2d 878; People v Scott, 114 A.D.2d 915, lv denied 67 N.Y.2d 765; cf., People v Lebron, 46 A.D.2d 776, 777-778). The defendant's remaining contentions with respect to certain remarks made by the prosecutor during his summation are either unpreserved for appellate review or without merit. Kunzeman, J.P., Eiber, Harwood and Balletta, JJ., concur.