PEOPLE v. WILSON

ORDERED that the judgment is affirmed.

The defendant was initially successful in obtaining the preclusion of one eyewitness's out-of-court computer photograph identification on the ground that it was unduly suggestive. The trial court, however, properly changed its ruling after the defense counsel's opening statement and allowed the People to elicit, upon direct examination of the eyewitness, testimony regarding that identification. The defense counsel strongly suggested in his opening remarks that the pretrial identification procedures, including the procedure for identifying the defendant through the use of a computer database, were unduly suggestive, and therefore, the witness's identification was unreliable. Since the defense counsel opened the door to the previously-precluded evidence, the trial court providently exercised its discretion in revisiting the preclusion order, and permitting the evidence to be introduced in the People's case-in-chief (see People v. Rojas, 97 N.Y.2d 32, 39; People v. Shack, 86 N.Y.2d 529, 541-542; People v. Biondo, 41 N.Y.2d 483, 485-486, cert denied 434 U.S. 928).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).

The defendant's remaining contentions are either without merit or unpreserved for appellate review (see CPL 470.05; People v. Udzinski, 146 A.D.2d 245).

O'BRIEN, J.P., FRIEDMANN, H. MILLER and CRANE, JJ., concur.