Opinion
2001-05680.
December 22, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered June 5, 2001, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Feldman, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Lynn W.L. Fahey, New York, N.Y. (Sarah J. Berger of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jane S. Meyers, and James E. Lamb of counsel), for respondent.
Before: WILLIAM F. MASTRO and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied that branch of his omnibus motion which was to suppress the complainant's identification testimony. The complainant spontaneously identified the defendant when he inadvertently discovered a photograph of the defendant which had been left inside a police detective's case folder, but had not been selected for inclusion in a photo array. This accidental viewing was not the product of any suggestive or improper police conduct ( see People v. Curry, 287 A.D.2d 252; People v. Nunez, 216 A.D.2d 494; People v. Acosta, 181 A.D.2d 577; People v. Casanova, 124 A.D.2d 813). In any event, the evidence presented at the hearing established that the complainant was sufficiently familiar with the defendant that his photographic identification was merely confirmatory ( see People v. Rodriguez, 79 N.Y.2d 445; People v. Reid, 300 A.D.2d 511; People v. Livotti, 293 A.D.2d 490; People v. Kemp, 255 A.D.2d 397; People v. Mack, 218 A.D.2d 816).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).
KRAUSMAN, J.P., SCHMIDT, MASTRO and RIVERA, JJ., concur.