Opinion
May 14, 1990
Appeal from the Supreme Court, Kings County (Aiello, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
The trial court erred in permitting the People to elicit, over timely objections, trial testimony regarding the side-by-side photographic identification of the defendant by a prosecution witness (see, People v. Caserta, 19 N.Y.2d 18; see also, People v Lindsay, 42 N.Y.2d 9; People v. Osgood, 89 A.D.2d 76). Inasmuch as the defendant raised a substantial issue as to identification at trial, we cannot consider the error harmless (see, People v Osgood, supra), and a new trial is warranted.
We have considered the defendant's remaining contentions and find them to be without merit. Mangano, P.J., Eiber, Sullivan and Balletta, JJ., concur.