People v. Bostick

100 A.D.2d 721, 473 N.Y.S.2d 644, 1984 N.Y. App. Div. LEXIS 17707

Opinion

Judgment unanimously affirmed. Memorandum: The court properly denied defendant’s motion to suppress the identification testimony. No hearing was required concerning the identification procedures at the preliminary hearing since the affidavit in support of the motion to suppress failed to set forth sworn allegations of fact indicating that the procedures were impermissibly suggestive (see United States v Gaines, 450 F2d 186, 195-196; People v Alexander, 88 AD2d 749). ¶ The court did not abuse its discretion in excluding evidence proffered by the defendant that the victims, long after the crime, failed to identify the defendant from a Xerographic copy of a photographic array. The copy of defendant’s photograph was not properly authenticated, for there was no showing that it correctly portrayed a likeness of the defendant (see Richardson, Evidence [10th edl, § 137). On the contrary, one identification witness testified that the copy was too dark and indistinct for her to make out the face. (Appeal from judgment of Monroe County Court, Mark, J. — grand larceny, third degree.) Present — Dillon, P. J., Doerr, Boomer, O’Donnell and Schnepp, JJ.