Opinion
2004-1669 N CR.
Decided October 27, 2006.
Appeal from a judgment of the District Court of Nassau County, First District (Susan T. Kluewer, J.), rendered November 8, 2004. The judgment convicted defendant, upon a jury verdict, of assault in the third degree.
Judgment of conviction affirmed.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
Following a jury trial, defendant was convicted of assault in the third degree in violation of Penal Law § 120.00 (2). During the course of the trial, the court, outside the presence of the jury, conducted what it termed a "mini Wade hearing." Following the hearing, the court concluded that the witness' identification of the defendant was not done pursuant to a procedure arranged by the police, and therefore, the People were not required to satisfy the notice requirements set forth in CPL 710.30 prior to admission of said testimony into evidence. On this appeal, defendant argues that the People should have been precluded from eliciting identification testimony and admitting into evidence photographs of the complainant depicting her injuries.
Section 710.30 of the Criminal Procedure Law is a notice statute intended, as relevant herein, to facilitate a defendant's opportunity to challenge before trial the reliability of his or her identification by others ( see People v Lopez, 84 NY2d 425, 428). Said section requires that the prosecutor, within 15 days of defendant's arraignment, serve notice of the intention to offer at trial any "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by [*2]a witness who has previously identified him as such" (CPL 710.30). An exception to the applicability of this section, where the People are not required to serve notice of their intention to offer evidence as to the identification at trial, exists where the identification was not the result of a police arranged procedure ( see People v Dixon, 85 NY2d 218; People v Burgos, 219 AD2d 504, lv denied 86 NY2d 872). The identification of defendant by the People's witness, which occurred shortly after the police arrived, consisted simply of pointing out the defendant in the absence of any prompting by the officers and, thus, was not the product of a police arranged procedure ( see People v Dixon, 85 NY2d 218, supra; People v Burgos, 219 AD2d 504, supra; People v Gillman, 219 AD2d 505, lv denied 88 NY2d 847).
As to the admission in evidence of the photographs of the complainant's injuries, we note that the error, if any, was harmless in view of the overwhelming evidence of defendant's guilt ( see People v Crimmins, 36 NY2d 230). Accordingly, the judgment of conviction of assault in the third degree is affirmed.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.