Opinion
March 28, 1988
Appeal from the Supreme Court, Queens County (Leahy, J.).
Ordered that the judgment is affirmed.
The identification of the defendant by the witness Hudson had a sufficient basis independent of the photographic identification, namely, Hudson's observation of the defendant's face at the time of the crime and his recollection of having seen the defendant in the neighborhood (see, People v. Scatliffe, 117 A.D.2d 827, lv denied 67 N.Y.2d 1056; People v. Johnson, 106 A.D.2d 469; People v Laguer, 58 A.D.2d 610). Further, the photographic viewing was the product of Hudson's own activities and therefore could not be considered to be suggestive (see, People v. Whitaker, 126 A.D.2d 688, 689, lv denied 69 N.Y.2d 1011 ; People v. Parente, 104 A.D.2d 667; People v. Laguer, supra). Finally, since Hudson knew the defendant, even though not by name, the viewing of the photograph was merely confirmatory (see, People v. Tas, 51 N.Y.2d 915, 916; People v Whitaker, supra, at 689).
The prosecution properly objected to the defense counsel's statements during summation, which either referred to matters that were not in evidence or concerned irrelevant material which should not have been a subject of the jury's deliberations (see, People v. De Jesus, 42 N.Y.2d 519, 526; People v. Ashwal, 39 N.Y.2d 105, 109-110).
We have considered the defendant's remaining contentions and find them to be without merit. Lawrence, J.P., Rubin, Eiber and Harwood, JJ., concur.