Opinion
December 23, 1988
Appeal from the Onondaga County Court, Gorman, J.
Present — Callahan, J.P., Denman, Green, Pine and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Upon our review of the record, we conclude that several errors were committed but that none requires reversal of defendant's conviction for assault in the second degree and criminal possession of a weapon in the second degree. The joint identification by two witnesses of defendant's photograph out of a series of mug shots was improper. This practice of eliciting photo identification from more than one witness at a time has been condemned for being unduly suggestive (see, People v Mosley, 110 A.D.2d 937, 938; People v Jones, 108 A.D.2d 824, 825; People v Gaddy, 98 A.D.2d 729; People v Fernandez, 82 A.D.2d 922, 923; People v Harris, 74 A.D.2d 879; People v Leite, 52 A.D.2d 895). However, there was sufficient evidence supporting the hearing court's determination that there was an independent basis for the in-court identification by the eyewitnesses (see, People v Ballott, 20 N.Y.2d 600, 606-607; People v Jenkins, 132 A.D.2d 942, lv denied 70 N.Y.2d 751; People v Mosley, supra, at 938-939; People v Jones, supra, at 825; People v Chamberlain, 96 A.D.2d 959, 960).
We agree with defendant's contention that the court erred in giving the jury a "no unfavorable inference" charge where defendant did not request that such charge be given (see, People v Goncalves, 143 A.D.2d 530). In view of the overwhelming evidence of defendant's guilt, however, there is no reasonable possibility that the error contributed to defendant's conviction (People v Crimmins, 36 N.Y.2d 230, 237; see also, People v Koberstein, 66 N.Y.2d 989).
The court also erred in permitting Officer Goldacker to testify on direct examination as to an eyewitness's prior description and identification of defendant. That testimony was not only hearsay, but also constituted improper bolstering (People v Trowbridge, 305 N.Y. 471). However, since there was no objection to that testimony, the issue has not been properly preserved for appellate review (CPL 470.05). Moreover, it is well established that the admission of bolstering testimony is subject to harmless error analysis (People v Johnson, 57 N.Y.2d 969).