PEOPLE v. CRUZ

An eyewitness was unable to identify defendant in a photo array two months after the commission of the crimes for which defendant was convicted. Nevertheless she was permitted to make an in-court identification of defendant at trial, some two years later. We believe the testimony was properly admitted, and that the prior inability to identify defendant related to the weight, and not the admissibility, of the testimony (People v. McCullers, 40 A.D.2d 796, affd. 33 N.Y.2d 806).

We find no merit to defendant's claim that the court abused its discretion in imposing the maximum sentence.

Concur — Ross, J.P., Milonas, Rosenberger, Asch and Kassal, JJ.