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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RAMON GARCIA, Appellant.

Judgment affirmed.

There is no merit to defendant's contention that a photograph identification by an eyewitness was impermissibly suggestive simply because a physical lineup, the preferred procedure, was not employed. A photographic identification is a proper method of identification (People v Brown, 114 A.D.2d 855; People v Russo, 52 A.D.2d 62; People v Dibble, 46 A.D.2d 829). The use of an array of six photographs is constitutionally permissible where defendant's photograph is not distinctive (see, People v Rolston, 109 A.D.2d 854). Finally, the witness in the instant case had ample opportunity to view the defendant both prior to and during the commission of the crime; thus there was an independent basis for an accurate in-court identification (see, People v Malphurs, 111 A.D.2d 266; People v Rolston, supra). Mollen, P.J., Thompson, Niehoff and Eiber, JJ., concur.

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PEOPLE v. GARCIA
(Dec 16, 1985)