Opinion
March 8, 1991
Appeal from the Supreme Court, Erie County, Sedita, J.
Present — Callahan, J.P., Doerr, Denman, Pine and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: We remitted this matter to reopen the Huntley hearing (People v Huntley, 15 N.Y.2d 72) so that we could determine whether defendant's written statement was taken in violation of his right to counsel (People v McGee, 155 A.D.2d 878). However, because People v Bartolomeo ( 53 N.Y.2d 225) has been overruled by People v Bing ( 76 N.Y.2d 331, rearg denied sub nom. People v Cawley, 76 N.Y.2d 890), and Bing applies retroactively (People v Brown, 171 A.D.2d 1038 [decided herewith]), defendant's contention that there was a Bartolomeo violation does not provide a basis to suppress his written statement.
There is no merit to defendant's further argument that the failure of one of the victims to identify defendant's photograph during the Grand Jury proceedings constituted Brady material that should have been disclosed to him; the Grand Jury minutes were provided to defendant at trial and he had the opportunity to cross-examine that witness (see, People v Cortijo, 70 N.Y.2d 868, 870). Defendant's additional contention that a Wade hearing should have been held also lacks merit because the witness failed to make a pretrial identification (see, People v Monroig, 111 A.D.2d 935, lv denied 66 N.Y.2d 921) and defendant did not request a Wade hearing once the in-court identification by that witness had been made (cf., People v Williams, 146 A.D.2d 661, 662).