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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. SHAWN BARTHOLOMEW, Appellant.

Ordered that the judgment and amended judgment are affirmed.

Contrary to the defendant's claim, the People adduced sufficient evidence at the pretrial hearing regarding the circumstances surrounding the witnesses' viewing of photographs, and met the initial burden of going forward to establish the reasonableness of the police conduct and the lack of suggestiveness of the pretrial identification procedure. The testimony of the police administrative aide who supervised the viewing of hundreds of photographs by the two witnesses, who were seated at the same table about five feet apart, established that the witnesses' photographic identifications were separate and independent from each other ( see, People v Magee, 122 AD2d 227; People v Cummings, 109 AD2d 748). The defendant failed to satisfy his ultimate burden of proving that the identification procedure was unduly suggestive ( see, People v Byrd, 183 AD2d 773; People v Collymore, 127 AD2d 603, 604).

The defendant's claims with respect to the alleged prosecutorial misconduct are either unpreserved for appellate review or do not require reversal.

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PEOPLE v. BARTHOLOMEW
(Mar 10, 1997)