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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CLIVENS CELESTIN, Appellant.

Ordered that the judgment and amended judgment are affirmed.

Under Indictment No. 10744/93, the defendant challenges the lineup identification made by three witnesses on the ground that, prior to the lineup, the witnesses could have communicated in the waiting room. As this contention is purely speculative and unsupported by the hearing record, the defendant has not met his burden of proving that the procedure was unduly suggestive ( see, People v Morales, 134 AD2d 292; see also, People v Lane, 192 AD2d 1135).

Viewing the evidence under Indictment No. 10744/93 in the light most favorable to the prosecution ( see, People v Contes, 60 NY2d 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 under Indictment No. 10744/93 was not against the weight of the evidence ( see, CPL 470.15).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

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PEOPLE v. CELESTIN
(Sep 30, 1996)