Opinion
October 9, 1990
Appeal from the Supreme Court, Kings County (O'Brien, J.).
Ordered that the judgment is affirmed.
The defendant contends that it was error for the trial court at the second trial to permit one of the eyewitnesses to testify that at the first trial she had identified the defendant as one of the culprits. However, under CPL 60.30 prior identification evidence is admissible. Moreover, the defendant cannot now successfully argue that the prior in-court identification was unduly suggestive since as it was defense counsel who elicited the in-court identification of the defendant at the first trial (see, People v. White, 73 N.Y.2d 468, 475, cert denied ___ US ___, 110 S Ct 170).
The defendant also contends that the other eyewitness's incourt identification which occurred over seven years after the robbery and without the witness ever having participated in any other identification procedure was improper. We disagree. The issue of the reliability of the identification was properly left for the jury since the resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the jury (see, People v. Gruttola, 43 N.Y.2d 116, 122).
Although the prosecutor at this trial would have been bound by the prosecutor's stipulation at the first trial not to elicit in-court identifications of two eyewitnesses (see, CPL 710.60 [b]) the record is equivocal as to whether the attorneys at the first trial in fact stipulated that the two eyewitnesses would be precluded from making an in-court identification at all subsequent criminal proceedings. Even so, in light of the overwhelming evidence of defendant's guilt, any error is harmless beyond a reasonable doubt (see, People v White, supra, at 475-476).
Since defense counsel failed to object to the court's identification charge at trial, this issue is not preserved for appellate review (CPL 470.05; People v. Medina, 53 N.Y.2d 951, 953). In any event, the court's charge concerning identification was in accord with the minimal instruction required and was an accurate statement of the law (see, People v. Whalen, 59 N.Y.2d 273; People v. Trama, 160 A.D.2d 748; People v. Beard, 157 A.D.2d 788).
Finally, under the circumstances of this case, including the hearing court's finding that missing evidence was inculpatory only and that there was no bad faith on the part of the police department or the District Attorney's office concerning this loss, the court's charge regarding this issue was proper (see, People v. Haupt, 71 N.Y.2d 929; People v. Kelly, 62 N.Y.2d 516, 521; People v. Wells, 144 A.D.2d 400). Bracken, J.P., Eiber, Balletta and Rosenblatt, JJ., concur.