Opinion
February 29, 1988
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the judgments are affirmed.
During the course of a Wade hearing, the defendant requested an adjournment so that he could obtain street clothes in order to avoid being seen by the jury panel which was to be brought in upon completion of the hearing in prison garb which consisted of a white shirt and State-issued pants. The Judge denied the request for an adjournment but informed the defendant that he would permit him to change into street clothing the following morning in his cell. That branch of the defendant's omnibus motion which was to suppress identification testimony was denied. The following day, the defendant pleaded guilty and was promised sentences which were less than the maximum permissible sentences, with those sentences to run consecutively to the sentence the defendant was then serving on an unrelated case.
Since the defense counsel did not indicate his reasons for not calling the witnesses who identified the defendant from a photographic array and subsequently at a lineup procedure at the Wade hearing, the issue of ineffective assistance of counsel cannot be addressed on a direct appeal because it involves matters dehors the record (see, People v Brown, 45 N.Y.2d 852; People v Ogelsby, 128 A.D.2d 556, lv denied 69 N.Y.2d 1007; People v Rodriguez, 123 A.D.2d 405, lv denied 69 N.Y.2d 832). We note that there is no automatic rule which requires that a complaining witness testify at a Wade hearing (People v Brown, 111 A.D.2d 928; People v Ward, 95 A.D.2d 233).
Moreover, the record supports the Supreme Court's determination that the identification procedures conducted herein were nonsuggestive. The photographic array contained six photographs of men of similar characteristics to the defendant. There has been no contention that the defendant's photograph was distinctive or that it was highlighted in any way (see, People v Whitaker, 126 A.D.2d 688, lv denied 69 N.Y.2d 1011; People v Coleman, 115 A.D.2d 488; People v Rolston, 109 A.D.2d 854). We further find that under the totality of the circumstances, the lineups conducted were not unduly suggestive or conducive to irreparable mistaken identification (see, Stovall v Denno, 388 U.S. 293; People v Rodriguez, 124 A.D.2d 611). The defendant was represented by counsel at the lineups who, following compliance with his request for certain changes, stated that he had no further objections (see, People v Kreutz, 110 A.D.2d 912).
Although a court should not compel a defendant to stand trial before a jury while dressed in identifiable prison garb (Estelle v Williams, 425 U.S. 501, reh denied 426 U.S. 954, on remand 537 F.2d 856), the defendant in the instant case was dressed in a white shirt and State-issued pants. There is nothing in the record to indicate that the clothing bore the markings of "prison garb" (cf., People v Roman, 35 N.Y.2d 978, 979). Moreover, the trial court took steps on its own initiative to assure that the defendant's request would be complied with at a time which would not unduly delay the proceedings. The defendant knew that jury selection would commence at the close of the Wade hearing and could have made arrangements to obtain the clothing at a time which would not have disrupted the proceedings already in progress (cf., People v Roman, supra).
Finally, we find no basis for concluding that the sentence imposed, which was the product of a negotiated plea, warrants modification in the interest of justice (see, People v Shelton, 110 A.D.2d 789; People v Ramos, 109 A.D.2d 898; People v Kazepis, 101 A.D.2d 816; People v Suitte, 90 A.D.2d 80). Nor was it improper for Criminal Term to provide that the sentences on the instant indictments were to be served consecutively to a sentence the defendant was already serving (see, People v Walsh, 44 N.Y.2d 631; People v Singletary, 116 A.D.2d 604, lv denied 67 N.Y.2d 951). Thompson, J.P., Brown, Lawrence and Weinstein, JJ., concur.