Opinion
May 11, 1987
Appeal from the Supreme Court, Kings County (Schwartzwald, J.).
Ordered that the judgment is affirmed.
The defendant contends that the photographic array presented to one of the witnesses by the police some time after the event was so suggestive as to be violative of due process. The array consisted of six photographs, five of which indicated the height of the individuals, while the defendant's photograph, which was one quarter of an inch less in size than the other photographs, did not show his height. These characteristics, when taken together, could serve to draw the viewer's attention to the defendant's picture and could arguably indicate that the police had made a particular selection (People v. Emmons, 123 A.D.2d 475). A few months after viewing the photo array, the same witness identified the defendant in a nonsuggestive lineup.
This witness had an independent basis for the lineup identification since she had viewed the defendant for 5 to 10 minutes in a well-lit store. In close proximity to this witness, the defendant took money from her desk, and she observed him compel the office manager to open the safe. Therefore, any prejudice to the defendant from the photo array did not taint the subsequent lineup (see, People v. Satchell, 116 A.D.2d 753, lv denied 67 N.Y.2d 889).
Also, the defendant contends that it was error for the store's security director to display to the complainant a photograph of the defendant allegedly taken during a prior robbery of a different company store. There was nothing in the record to demonstrate that the private security director was acting under police instruction or that his private investigation of this occurrence was in any manner converted into police activity. Under such circumstances, there was no error premised on the activities of the store security director (see, People v Ray, 65 N.Y.2d 282; People v. Graham, 120 A.D.2d 674, lv denied 68 N.Y.2d 757).
The defendant's contention that his guilty plea must be vacated because the trial court failed to obtain a precise statement from him as to all the facts of the crime to which he pleaded, is without merit. The defendant's objections to the plea allocution are unpreserved for appellate review (see, People v. Pellegrino, 60 N.Y.2d 636). In any event, under the circumstances of this case where there was a bargained-for guilty plea to a lesser crime, and the defendant was aware of the circumstances of the crime with which he was charged, there was no need for a factual basis for the particular crime confessed (People v. Armer, 119 A.D.2d 930; People v. Epps, 122 A.D.2d 587). Furthermore, the record reveals that the allocution was adequate (People v. Harris, 61 N.Y.2d 9).
Finally, we note that the imposed sentence of 3 to 6 years' imprisonment as a predicate felon was well within the sentencing court's discretion and does not warrant modification (see, People v. Mascale, 121 A.D.2d 400). Bracken, J.P., Brown, Rubin and Spatt, JJ., concur.