Opinion
November 15, 1976
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 3, 1975 (the date on the clerk's extract is August 5, 1975), convicting him of assault in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. The showups conducted at the victim's home and at the Criminal Court hearing were unnecessary and therefore impermissible (see Stovall v Denno, 388 U.S. 293). The People have so conceded. However, the independent observations of the witnesses, based upon their recollections of the events of the night the crime was committed, render remote the possibility that the pretrial identifications tainted their in-court identifications (see People v Burwell, 26 N.Y.2d 331, 336; People v Ballot, 20 N.Y.2d 600, 606). It was also error for the trial court to have alluded to the prior identification of a witness and, as conceded by the People, to admit Detective Ryan's testimony regarding the complainant's pretrial identification of defendant (see People v Malloy, 22 N.Y.2d 559; People v Cioffi, 1 N.Y.2d 70). Mr. Murdough's testimony, alluding to his previous identifications of defendant at the Wade hearing and at the postindictment showup in the Criminal Court, was similarly improper. Those were not identifications within the ambit of CPL 60.30 (see CPL 1.20, subds 16, 17; People v Annis, 48 A.D.2d 622, 623). However, in view of the positive and convincing in-court identifications of defendant by Mr. Simpkins, the complaining witness, and by Mr. Murdough, his companion, which were based upon their opportunity to observe defendant on the night of the crime, such error may be treated as harmless (see People v Milburn, 19 N.Y.2d 910; People v Caserta, 19 N.Y.2d 18). We have reviewed these claims of error in the interest of justice, notwithstanding the failure of defense counsel to object at the trial (see People v Kelly, 12 N.Y.2d 248, 250; People v McGill, 47 A.D.2d 961, 962). Hopkins, Acting P.J., Martuscello, Cohalan, Rabin and Titone, JJ., concur.