This requirement may be also satisfied where the sole basis for the declarant's identification is years of acquaintance with -- and perception of -- the subject, as Bizarro's was here. See Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 449 n.14, 862 N.E.2d 456 (2007) ("perceive" language in § 801(d)(1)(C) "focuses on the nature of the statement ... identifying the person after the declarant has perceived that person," without limiting basis of perception). Our precedent considering witness identifications more generally supports this understanding.

“Testimony by a third party, such as a police officer, regarding a witness's extrajudicial identification is substantively admissible if the identifying witness is unable or unwilling [to make an identification] in court and is available for cross-examination.... [I]t is immaterial that the identifying witness disavows having made a prior extrajudicial identification, or even denies having any basis for making an identification.” Commonwealth v. Raedy, 68 Mass.App.Ct. 440, 446–447, 862 N.E.2d 456 (2007), citing Commonwealth v. Cong Duc Le, 444 Mass. 431, 441, 828 N.E.2d 501 (2005). Such testimony is admissible to establish identifying features of a defendant “because of the superior probative worth of an identification made closer in time to the events in question.”

The defendant contends that rule 801 (d) (1) (C) applies only to identifications made from a photographic array, a showup, or other identification procedure, including a lineup, and does not include simply the articulation of a name based on the witness's familiarity with the person identified. In Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 446-450 (2007), the Appeals Court considered precisely this question and concluded that rule 801 (d) (1) (C) contains no such limitation. Id. at 448-449.

May 2, 2007. Reported below: 68 Mass. App. Ct. 440 (2007). Orders Further appellate review denied:

See Commonwealth v. Machorro, 72 Mass. App. Ct. 377, 379 (2008) ("an identification made soon after an event is generally more reliable than one made later when memory may have faded and suggestiveness might have become a factor" [citation omitted]). See also Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 449 (2007) (statements made closer in time to an event carry superior probative worth). Finally, the defendant claims that the motion judge abused his discretion in failing to hold an evidentiary hearing when ruling on the motion for new trial.

We agree with the defendant that proof of identity is an essential element that must be proved by the Commonwealth. See Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 443-444 (2007). Here, however, the evidence was sufficient to prove identity beyond a reasonable doubt.

See Mass.G.Evid. § 801(d)(1)(C) (2008-2009) ("A statement of identification made after perceiving the person if the declarant testifies at trial . . . and is subject to cross-examination concerning the statement" is not hearsay and is admissible for the truth of the matter asserted). See also Commonwealth v. Cong Duc Le, 444 Mass. 431, 439-440 n. 8 (2005); Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 447-450 n. 14 (2007). b. Rehabilitation of Williams following impeachment by prior inconsistent statements.

However, we must consider whether this proposition since has been superseded, as the Commonwealth urges, by Commonwealth v. Cong Due Le, 444 Mass. 431, 435-442 (2005). See Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 446-447 (2007). The defendant conceded at oral argument before this court that this argument applies only to Mary, as Jane explicitly acknowledged her prior extrajudicial identification at trial.

To the extent that the witness's identification was of those articles as opposed to the defendant, there was an absence of the "extreme" circumstances required to render such indirect proof of the defendant's guilt fundamentally unfair. See Commonwealth v. Simmons, supra at 51-52; Commonwealth v. Jones, 25 Mass. App. Ct. 55, 62 (1987); Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 445 (2007). Further, the record shows that the judge was aware of the witness's partial reliance on these articles in identifying the defendant.

There having been no objection to the testimony of Officer Duke, reversal of the school zone conviction comes about only if admission of the measurement evidence was error and if the error caused a substantial risk of a miscarriage of justice. See Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 446 n. 8 (2007). There was no error.