Opinion
April 27, 1995
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
Once the prosecution stated, in its response to defendant's omnibus motion, that it did not intend to use any identification evidence at trial, the court was obligated to grant defendant's motion to suppress such testimony (CPL 710.60 [b]; see, People v White, 73 N.Y.2d 468, 475-476, cert denied 493 U.S. 859). It was, therefore, error for the court to permit the prosecution to question one of the witnesses concerning her identification of defendant. Since the remaining evidence of guilt was not overwhelming, this error may not be deemed harmless, and the conviction must be reversed.
Concur — Ellerin, J.P., Wallach, Kupferman, Asch and Mazzarelli, JJ.