Opinion
May 11, 1992
Appeal from the Supreme Court, Kings County (Pesce, J.).
Ordered that the judgment is affirmed.
We disagree with the defendant's contention that he received ineffective assistance of counsel. Defense counsel's withdrawal of the pretrial motion to suppress identification testimony by the complainant and his failure to raise a Dunaway issue do not, in and of themselves, render his performance ineffective (see, People v. Belgrave, 143 A.D.2d 103), and when viewed in its totality, defense counsel provided meaningful representation (see, People v. Baldi, 54 N.Y.2d 137). In any event, neither the defendant's Dunaway claim nor Wade claim was meritorious. It was proper for the police to show the complainant a photograph of the defendant from an arrest in which he was subsequently adjudicated a youthful offender (see, People v. Gallina, 110 A.D.2d 847; see also, People v. Patterson, 78 N.Y.2d 711). Since the defendant was known to the complainant, the showup at the police precinct was merely confirmatory, rendering its suggestiveness irrelevant (see, People v. Tas, 51 N.Y.2d 915; People v Gissendanner, 48 N.Y.2d 543; People v. Harley, 174 A.D.2d 576).
The defendant failed to preserve for appellate review his claim that it was error for the court to instruct the jury, absent his request for such an instruction, that they should not draw an adverse inference from the defendant's failure to testify (see, People v. Autry, 75 N.Y.2d 836). In any event, any error with respect thereto was harmless in light of the overwhelming evidence of guilt (see, People v. Bradshaw, 154 A.D.2d 690). Further, the court's instruction did not imply that the decision not to testify was merely a tactical maneuver as opposed to the exercise of a constitutional right (see, People v Bradshaw, supra).
We have reviewed the defendant's remaining contentions and find them to be without merit. Thompson, J.P., Rosenblatt, Miller and O'Brien, JJ., concur.