People v. Garcia

Appeal by defendant from a judgment of the Supreme Court, Queens County (O’Dwyer, J.), rendered March 30, 1983, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

There is no merit to defendant’s contention that a photograph identification by an eyewitness was impermissibly suggestive simply because a physical lineup, the preferred procedure, was not employed. A photographic identification is a proper method of identification (People v Brown, 114 AD2d 855; People v Russo, 52 AD2d 62; People v Dibble, 46 AD2d 829). The use of an array of six photographs is constitutionally permissible where defendant’s photograph is not distinctive (see, People v Rolston, 109 AD2d 854). Finally, the witness in the instant case had ample opportunity to view the defendant both prior to and during the commission of the crime; thus there was an independent basis for an accurate in-court identification (see, People v Malphurs, 111 AD2d 266; People v Rolston, supra). Mollen, P. J., Thompson, Niehoff and Fiber, JJ., concur.