Opinion
September 26, 1994
Appeal from the County Court, Nassau County (Boklan, J.).
Ordered that the judgment is affirmed.
On remittitur, the County Court found that the photographic identification made by Nassau County Police Detective Carr in a Brooklyn police station prior to the arrest of the defendant, but approximately seven months after the drug sale witnessed by this detective, was "merely confirmatory". Accordingly, the court concluded that the People's failure to provide the defendant with the notice otherwise required by CPL 710.30 was not error. We disagree. Notwithstanding that there was little doubt as to the defendant's identity as the seller at the time of this identification procedure, given the extensive time lapse between Detective Carr's observations at the crime scene and his identification of the defendant from the photographs proffered by Brooklyn detectives, the identification was not confirmatory and notice should have been provided (see, People v. Mato, 83 N.Y.2d 406; People v. Newball, 76 N.Y.2d 587; People v. Gordon, 76 N.Y.2d 595; People v. Perez, 74 N.Y.2d 637; People v. Wharton, 74 N.Y.2d 921). Therefore, the court erred by not precluding Detective Carr's in-court identification of the defendant.
Nevertheless, given the overwhelming evidence of the defendant's identity and guilt, we find this error to be harmless (see, People v. Crimmins, 36 N.Y.2d 230; People v. Curtis, 203 A.D.2d 377; People v. Manson, 176 A.D.2d 294; People v. Mole, 147 A.D.2d 714; People v. Johnson, 54 A.D.2d 586). The defendant was properly identified in court by the confidential informant who conducted the sale. The transaction was tape recorded and Detective Carr identified the defendant's voice on the tape. Three other police officers, two of whom also witnessed the transaction, likewise identified the defendant as one of the two occupants of the car in which the sale was conducted. After the transaction, these two officers followed the suspect's car to a point on the Southern State Parkway where the car was stopped by a uniformed officer who ascertained the defendant's identity and who also identified him in court.
Furthermore, while Detective Carr's in-court identification of the defendant should have been precluded, this witness's extensive descriptive testimony concerning his observations of the defendant at the time of the sale was properly received in evidence (see, People v. Moss, 80 N.Y.2d 857). This testimony was consistent with the description memorialized by the witness in a police report written prior to the photographic show-up. Therefore, it was not tainted by the photographic show-up. Accordingly, it is clear that there was no substantial probability that but for the error in not precluding Detective Carr's in-court identification based upon a violation of CPL 710.30, the defendant would have been acquitted.
We have reviewed the defendant's remaining contentions and find them to be without merit. Miller, J.P., Lawrence, O'Brien and Pizzuto, JJ., concur.