Opinion
May 16, 1988
Appeal from the Supreme Court, Kings County (Deeley, J.).
Ordered that the judgment is affirmed, and the case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).
Although we find that the photographic identification of the defendant by the complaining witness may well have been tainted, the lineup was held approximately four months thereafter and was thus sufficiently attenuated in time to nullify any taint (see, People v Allen, 134 A.D.2d 598; People v Watts, 130 A.D.2d 695, lv denied 70 N.Y.2d 718). Moreover, the record fully supports the hearing court's determination that the complainant had an independent source for his recollection of the defendant upon which to base an in-court identification (see, Manson v Brathwaite, 432 U.S. 98; People v Ballott, 20 N.Y.2d 600).
The defendant has failed to preserve for appellate review his claim that he was denied a fair trial as a result of the detective's testimony regarding the circumstances surrounding the lineup identification by the complainant (CPL 470.05; see, People v Holt, 67 N.Y.2d 819; People v Walker, 125 A.D.2d 732). Review in the interest of justice is not warranted.
Viewing the evidence in the light most favorable to the People, we find that it was legally sufficient to establish the defendant's guilt (see, People v Contes, 60 N.Y.2d 620, 621). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15). Thompson, J.P., Weinstein, Eiber and Harwood, JJ., concur.