Opinion
November 26, 1984
Appeal from the Supreme Court, Queens County (Browne, J.).
Judgment affirmed.
Although a witness is generally not allowed to testify as to an extra-judicial identification of the defendant's photograph ( People v Griffin, 29 N.Y.2d 91; People v Baker, 23 N.Y.2d 307, mot to amd remittitur den. 23 N.Y.2d 898; People v Caserta, 19 N.Y.2d 18), there are certain exceptions to the general rule. One of those exceptions applies where the defendant opens the door to this type of inquiry during cross-examination of the witness ( People v Brown, 62 A.D.2d 715, aff'd. 48 N.Y.2d 921; People v Carter, 52 A.D.2d 829; cf. People v Lindsay, 42 N.Y.2d 9, 12).
Based upon the record in the case at bar, we find that defense counsel, in attempting to show that the complainant could not identify her assailant because she initially selected a person other than defendant from the first set of photographs she viewed, opened the door to this area of inquiry. Therefore, it was not error for the court to allow the prosecutor, on redirect examination, to elicit additional testimony regarding the complainant's ultimate selection of defendant from a different photo array.
During summation, the prosecutor vouched for the credibility of one of the People's witnesses and assailed the credibility of the defense witnesses by calling the defense "a fairy tale". These remarks, though improper, do not warrant reversal under the circumstances herein.
We have reviewed defendant's remaining contentions and find them to be without merit. Boyers, J.P., Rubin, Lawrence and Eiber, JJ., concur.