Opinion
June 2, 1980
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered July 12, 1979, convicting him of robbery in the first degree (six counts) and robbery in the second degree (three counts), after a nonjury trial, and imposing sentence. Judgment affirmed. Since CPL 710.40 (subd 3) is not qualified by CPL 320.20 (subd 4), the trial court's procedure of combining the Wade hearing and the nonjury trial was violative of the former provision. However, since defendant did not object to the procedure followed and has not demonstrated any actual prejudice suffered by him as a result thereof, the violation of CPL 710.40 (subd 3) does not require reversal. (Cf. People v. Brown, 24 N.Y.2d 168; People v. Lawrence, 39 N.Y.2d 956.) In this regard, our review of the record reveals no reason to disturb Criminal Term's denial of defendant's motion to suppress the identification testimony. We have examined defendant's remaining contention and find it to be without merit. Mangano, J.P., Gulotta, Cohalan and Margett, JJ., concur.