We find unavailing defendant's contention that County Court erred when it denied his motion to suppress any in-court identification of him by the CI without conducting a suppression hearing. Here, because the People's affidavit in response to defendant's omnibus motion adequately established that the CI and defendant knew one another, the subject identification procedure was merely confirmatory and not susceptible to undue police suggestiveness, such that no hearing was necessary (seePeople v. Rodriguez, 79 N.Y.2d 445, 449–450, 453, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992] ; People v. Rodriguez, 47 A.D.3d 417, 417, 849 N.Y.S.2d 232 [2008], lv denied 10 N.Y.3d 816, 857 N.Y.S.2d 49, 886 N.E.2d 814 [2008] ; People v. Small, 201 A.D.2d 315, 315, 607 N.Y.S.2d 291 [1994], lv denied 83 N.Y.2d 876, 613 N.Y.S.2d 137, 635 N.E.2d 306 [1994] ; People v. Cherny, 179 A.D.2d 938, 939, 579 N.Y.S.2d 204 [1992], lv denied 79 N.Y.2d 998, 584 N.Y.S.2d 453, 594 N.E.2d 947 [1992] ). Lastly, defendant's contention that County Court failed to abide by the procedure set forth in CPL 400.21 in adjudicating him a second felony offender is unpreserved for our review as defendant did not render any such objection at sentencing (seePeople v. Small, 166 A.D.3d 1237, 1239, 86 N.Y.S.3d 677 [2018] ; People v. Williams, 155 A.D.3d 1253, 1255, 64 N.Y.S.3d 742 [2017], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ).
The court allowed the People to present identification testimony, but cautioned that, if an identification procedure were used, then defendant could seek to preclude the testimony. In our view, the photographic identification procedures used here were not subject to the notice provisions of CPL 710.30 because defendant was known to the witnesses and photographs were confirmatory, that is, shown to the witnesses to put a name to the face (see People v. Heyliger, 126 A.D.3d 1117, 1120, 5 N.Y.S.3d 566 [2015], lv. denied 25 N.Y.3d 1165, 15 N.Y.S.3d 297, 36 N.E.3d 100 [2015] ; People v. Cobian, 185 A.D.2d 452, 453, 585 N.Y.S.2d 856 [1992], lv. denied 81 N.Y.2d 838, 595 N.Y.S.2d 737, 611 N.E.2d 776 [1993] ; People v. Cherny, 179 A.D.2d 938, 938–939, 579 N.Y.S.2d 204 [1992], lv. denied 79 N.Y.2d 998, 584 N.Y.S.2d 453, 594 N.E.2d 947 [1992] ). We find further that the court's pretrial Sandoval ruling was correct.
On appeal, defendant urges that he is entitled to a new trial because no CPL 710.30 notice was served concerning the victim's pretrial identification of defendant and because no Wade hearing was conducted. Where participants to an incident are known to each other, as here, any pretrial photographic identification by the victim is not an identification within the meaning of CPL 710.30 and, therefore, no prior notice of such identification need be given nor a Wade hearing conducted ( see, People v. Tas, 51 N.Y.2d 915, 916; People v. Gissendanner, 48 N.Y.2d 543, 552; People v. Cherny, 179 A.D.2d 938, 939, lv denied 79 N.Y.2d 998). In light of the evidence that defendant and the victim knew each other (they were once related by marriage and resided near each other), we reject defendant's contention that he is entitled to a new trial.
As a result of this denial, the evidence was rendered admissible, eliminating the requirement of notice (CPL 710.30; see, People v. Newball, 76 N.Y.2d 587, 590; People v. Li Castro, 180 A.D.2d 840). The People established at the hearing that Dillon knew defendant prior to the drug sales at issue and that the sole purpose of Dillon's confirmatory identification of defendant from a non-suggestive photograph array on September 1, 1989 was "to put a name to a face" (see, People v. Laurey, 163 A.D.2d 742, 743, lv denied 76 N.Y.2d 941; see also, People v. Wharton, 74 N.Y.2d 921). Consequently, County Court properly found that CPL 710.30 was inapplicable to Dillon (see, People v. Cherny, 179 A.D.2d 938; People v. Laurey, supra). County Court had actually initially declined to hold a Wade hearing but then apparently changed its mind at a pretrial conference and ordered the hearing.
The jewelry store clerk who identified the defendant as the person from whom he purchased the gold chain taken from the complainant knew the defendant from the neighborhood, having seen him more than 10 times. Where the witness and the defendant are known to one another, it is not the kind of situation ordinarily burdened or compromised by forbidden suggestiveness and CPL 710.30 is not implicated (People v Cherney, 179 A.D.2d 938; see, People v Wharton, 177 A.D.2d 730; People v Williamson, 79 N.Y.2d 799; People v Wharton, 74 N.Y.2d 921; People v Tas, 51 N.Y.2d 915). Indeed, because the witness knew the defendant, there was no danger that the showup and photographic identifications would taint the witness's in-court identification of the defendant. Sullivan, J.P., Lawrence, Ritter and Santucci, JJ., concur.
Contrary to the defendant's contention, the record demonstrates that the prosecutor adhered to the trial court's ruling, and that Crecca's testimony did not serve to "inferentially" identify the defendant as one of the perpetrators. In any event, we note that since the witness and the defendant were known to each other, the pretrial identification procedure conducted by the police was confirmatory in nature, and notice pursuant to CPL 710.30 was not required (see, People v Tas, 51 N.Y.2d 915; People v Cherny, 179 A.D.2d 938; People v Addison, 174 A.D.2d 627). We further reject the defendant's contention that he was deprived of his right to confrontation by the admission of a statement made by his codefendant.
established that prior contacts which are insufficient to prove familiarity as a matter of law, to justify denial of a hearing, may suffice to prove familiarity once a hearing is held and all the Rodriguez factors are evaluated. See, e.g., People v. Breland, 83 N.Y.2d 286, 295 (1994) (after hearing, sufficient familiarity found, where prior contact, although "brief," was "intense" and "focused" since the witness met the defendant in the context of arranging assassination); People v. Walker, 289 A.D.2d 53, 53-54 (1st Dept. 2001) (after hearing, sufficient familiarity found, where witness, who had seen the defendant only around five times, had reason to focus on him and noticed his distinctive eyes and gait); People v. Lainfiesta, 257 A.D.2d 412, 416 (1st Dept. 1999) (after Rodriguez hearing, failure to serve notice upheld, as witness detailed circumstances of four prior observations of defendant, including how she learned his identify and had reason to remember him); People v. Cherny, 179 A.D.2d 938, 938-939 (3rd Dept. 1992) (victim saw defendant a "number" of times and recognized him as "ferret man"); People v. Perkins, 196 A.D.3d 1107, 1107-1108 (4th Dept. 2021) (victim dated defendant for two months); People v. Burgess, 40 A.D.3d 322 (1st Dept. 2007) (witness saw defendant daily for a few months including the same day as the photo identification). Contrary to the defendant's argument in his memorandum of law, courts have consistently upheld the use of hearsay at Rodriguez hearings.
The Defendant disputes exactly how the accident occurred, and what the victim claims happened after the accident. The District Attorney argues the victim's viewing of Defendant's driver's license was simply to put a name to the face she had identified (see People v. Cherny, 179 AD2d 938 app den 79 NY2d 998). The photographic identification of the Defendant by the victim was not conducted in the best available manner.