Opinion
April 25, 1988
Appeal from the Supreme Court, Kings County (Lodato, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. 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).
Although the hearing court did not make any findings on the witness's independent basis for identifying the defendant, the record is fully developed so as to permit this court to make an appropriate ruling (see, People v. Mallory, 126 A.D.2d 750; People v. Hall, 81 A.D.2d 644; People v. Thomas, 58 A.D.2d 899).
We note that the failure of the People to preserve a record of a photographic array shown to a witness shortly after a robbery gives rise to an inference that the photo array was suggestive (People v. Scatliffe, 117 A.D.2d 827, lv denied 67 N.Y.2d 1056; People v. Johnson, 106 A.D.2d 469). However, this is not the case when the array is so voluminous that the sheer volume and scope of the procedure would create an undue burden upon the People and when the police had not yet focused on a particular suspect (People v. Ludwigsen, 128 A.D.2d 810, lv denied 69 N.Y.2d 1006; see also, People v. Jerome, 111 A.D.2d 874, lv denied 66 N.Y.2d 764). The police officer who presented the photo array to the witness testified that the array consisted of several hundred photographs. The record further reflects that the police had no suspects before the witness made the photo identification. Therefore, we find the People had overcome the presumption of suggestiveness. Furthermore, reviewing the record of the hearing, we find the photo array was not suggestive and therefore the branch of the defendant's omnibus motion which was to suppress the incourt identification testimony of the witness was properly denied (see, People v. Pleasant, 54 N.Y.2d 972, cert denied 455 U.S. 924; People v. Rodriquez, 117 A.D.2d 826).
In any event, we find that the totality of the circumstances show that the witness could make an in-court identification based upon his observations at the time of the commission of the crime.
We have reviewed the defendant's other contentions and find them to be without merit. Kunzeman, J.P., Rubin, Eiber and Sullivan, JJ., concur.