Opinion
July 16, 1992
Appeal from the Supreme Court, Bronx County (Bonnie Wittner, J.).
Prior to trial, the court granted the application of the prosecutor to terminate the Wade hearing after it became apparent that the witness who had viewed defendant in a lineup was previously familiar with him. Defendant has waived any claim to appellate review of this decision because his counsel failed to take advantage of the court's ruling allowing him to reopen the Wade hearing if he could establish a lack of familiarity with defendant through voir dire of the witness. In any case, the detective's testimony at the hearing that Witness F said, "Reggie shot the deceased," coupled with the witness' Grand Jury testimony that he had known defendant for a "couple of months" from "around the neighborhood," was sufficient to make a finding of prior familiarity (see, People v. Padgett, 145 A.D.2d 443, 444, lv denied 73 N.Y.2d 894). Finally, contrary to defendant's argument, his presence was not required when the court rendered its decision granting the People's application to terminate the Wade hearing (People v. Velasco, 77 N.Y.2d 469).
Defendant's argument that the trial testimony of numerous witnesses, that they were present when defendant and his accomplice shot the deceased, and that of a detective regarding the line-up procedure, constituted impermissible bolstering is unpreserved for appellate review, and we decline to reach it in the interest of justice (CPL 470.05). Were we to reach the issue, we would find that none of this testimony constituted bolstering.
We have reviewed all other claims of defendant and find them to be unpreserved and meritless.
Concur — Ellerin, J.P., Wallach, Ross, Asch and Smith, JJ.