Opinion
May 23, 1988
Appeal from the County Court, Nassau County (Belfi, J.).
Ordered that the judgment is affirmed.
The defendant's claim that a detective's statement to the complainant that a photograph of the defendant would be included in the photopack compromised the validity of the identification and, consequently, tainted the lineup identification, is without merit. It is well settled that an identification is not automatically contaminated by an officer's remark that a subject is in custody (People v Rodriguez, 64 N.Y.2d 738, 740; People v Logan, 25 N.Y.2d 184, 192, cert denied 396 U.S. 1020). Similarly, advising a witness that the photo of a particular individual who was a suspect and whose name and face the witness had not yet had the occasion to connect, would be included in a photo array, is not fatal to the propriety of the procedure. Moreover, even if the photo identification had been suggestive it would not have tainted the subsequent lineup identification. Significantly, the lineup was held approximately two months thereafter and was thus sufficiently attenuated in time to nullify any possible taint (see, People v Watts, 130 A.D.2d 695, 696, lv denied 70 N.Y.2d 718; People v Ruffino, 110 A.D.2d 198, 201). Further, the officer's statement to the complainant that Ronald Smith would appear in the lineup did not diminish the validity of the identification. That the complainant knew the defendant, whose photo had been included in the array, would be in the lineup did not necessarily imply to him that he had chosen the "right man" from the photos displayed to him and did not present a serious risk of influencing the witness's identification of the defendant from the lineup (see, People v Rodriguez, supra, at 740-741; People v Reddy, 124 A.D.2d 835, 836; People v Wilson, 111 A.D.2d 940; People v Jerome, 111 A.D.2d 874, lv denied 66 N.Y.2d 764).
Nor were the identification procedures rendered unduly suggestive by virtue of the groups of photographs and persons used therein. Our examination of the photo array as well as a photo of the lineup reveals that the hearing court properly concluded that they were "comprised of six male blacks whose individual age, coloring and physical characteristics were consistent with the description" provided by the complainant.
The defendant further challenges the legal sufficiency of the verdict on the basis that the complainant's testimony was incredible as a matter of law and of fact. He further contends that the jury should not have credited the complainant's testimony particularly when contrasted with that of the defense witness. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15). Issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury (see, People v Gaimari, 176 N.Y. 84, 94), whose determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v Garafolo, 44 A.D.2d 86, 88).
We have examined the defendant's remaining contentions and find them to be without merit. Bracken, J.P., Brown, Weinstein and Rubin, JJ., concur.