People v. Woodward , 156 A.D.2d 196 ( 1989 )

Judgment of the Supreme Court, Bronx County (Gerald Sheindlin, J., at suppression hearing, trial and sentencing), rendered on June 3, 1988, convicting defendant of robbery in the third degree and sentencing him to an indeterminate term of from 2Vi to 5 years’ imprisonment and imposing a mandatory surcharge of $100, unanimously affirmed.

The complaining witness initially selected a photograph of defendant’s brother from various books of photographs displayed to her by the police. It was determined that defendant’s brother was incarcerated at the time of the robbery herein, and subsequently the complaining witness was shown a photographic array which contained a photograph of the defendant but not of the defendant’s brother. From this array, the complaining witness identified the defendant as the perpetrator. We find that the failure to include a photograph of defendant’s brother in the array was not suggestive, because he had been ruled out as a suspect. Moreover, any suggestiveness in the photographic array could hardly have tainted the lineup identification which occurred some nine months subsequently.

We have examined defendant’s other arguments and find that they are without merit. Concur—Murphy, P. J., Asch, Kassal and Rosenberger, JJ.