Opinion
November 16, 1994
Appeal from the Cayuga County Court, Contiguglia, J.
Present — Green, J.P., Fallon, Wesley, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment, following a nonjury trial, convicting him of one count of murder in the second degree. We conclude that the pretrial photo array identification was not unduly suggestive. Even if the array were suggestive, there was a sufficient independent basis for the witness's in-court identification of defendant (see, People v. Callace, 143 A.D.2d 1027, lv denied 73 N.Y.2d 889). Although the identification testimony was bolstered, that error is harmless in light of the otherwise overwhelming evidence of guilt and the strong and unequivocal identification of defendant (see, People v. Johnson, 57 N.Y.2d 969; People v Garner, 190 A.D.2d 1041, lv denied 81 N.Y.2d 885). Moreover, because the case was tried before the court without a jury, we may presume that the court considered only competent evidence in reaching its verdict (see, People v. Limpert, 186 A.D.2d 1005, lv denied 81 N.Y.2d 764).
There is no merit to defendant's argument that the prosecutor failed to turn over Rosario material (see, People v. Rosario, 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866, rearg denied 14 N.Y.2d 876, 15 N.Y.2d 765). The transcripts of prison disciplinary proceedings involving the same incident were not in the People's custody and control (see, People v. Flynn, 79 N.Y.2d 879, 882; People v. Washington, 196 A.D.2d 346, lv granted 83 N.Y.2d 1008); nevertheless, during trial, relevant portions of the transcripts were turned over to defendant pursuant to a court ordered subpoena served on the Department of Correction and defendant was not substantially prejudiced (see, People v. Jackson, 154 A.D.2d 930, lv denied 74 N.Y.2d 949). Although defendant objected to the failure to turn over the transcript of the testimony of a confidential informant, the confidential informant was not a prosecution witness at trial, and thus the People were not obligated to produce that transcript (see, People v. Love, 187 A.D.2d 1030, lv denied 81 N.Y.2d 888).
Additionally, we conclude that the proof of defendant's guilt is sufficient and the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495).