Opinion
January 18, 1994
Appeal from the Supreme Court, Kings County (L. Priscilla Hall, J., Goldman, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered; and it is further,
Ordered that the amended judgment is reversed, on the law, and the matter is remitted for further proceedings on the issue of the defendant's violation of probation.
The defendant contends that the Supreme Court erred by denying his motion to preclude the identification testimony of Juan Malpica, one of the two complainants herein, because the People failed to supply him with timely notice pursuant to CPL 710.30. We agree.
The People had originally supplied the defendant with timely notice of the photographic identification by Malpica. However, in opposition to that branch of the defendant's omnibus motion requesting suppression of Malpica's identification or a Wade hearing, the People stated, "Juan Malpica did not make an out-of-court identification; therefore, no hearing is warranted." Thus, the People withdrew, albeit mistakenly, their timely-served notice, which then became ineffective (see, People v. Boughton, 70 N.Y.2d 854).
Prior to the commencement of the Wade hearing, the prosecutor informed the court and defense counsel that Juan Malpica had, in fact, made a photographic identification of the defendant and that the People's answer to the defendant's omnibus motion had been erroneous. Although CPL 710.30 permits the service of a late notice for good cause shown, here, the People offered no good cause for the delay in supplying notice, and mere neglect or confusion on the part of the prosecution is no excuse (see, People v. O'Doherty, 70 N.Y.2d 479, 486-488; People v. Lubarska, 143 A.D.2d 1048, 1049). Additionally, lack of prejudice to the defendant does not obviate the requirement that the People show good cause before they may be permitted to serve late notice (see, People v. O'Doherty, supra, at 481; People v. McMullin, 70 N.Y.2d 855, 856; People v. Phillips, 183 A.D.2d 856, 858). Thus, it was error for the Supreme Court to deny the defendant's motion to preclude the identification testimony of Juan Malpica.
This error cannot be considered harmless when, as here, the identification of the defendant was the sole issue at trial, the defendant presented an alibi defense, and the only other evidence connecting the defendant to the crime was the identification testimony of the other complainant, Jose Aviles, who had been severely beaten at the time of the incident.
Finally, in light of our determination, since the amended judgment under Indictment No. 5897/89 was predicated, at least in part, on the defendant's conviction under Indictment No. 6166/90, we find that the amended judgment must be reversed, the finding that the defendant had violated the conditions of his probation under Indictment No. 5897/89 vacated (see, People v. Reed, 186 A.D.2d 159; People v. Bradford, 162 A.D.2d 457), and further proceedings held on that issue. Thompson, J.P., Balletta, O'Brien and Santucci, JJ., concur.