Opinion
February 17, 1998
Appeal from the Supreme Court, Bronx County Alexander Hunter, Jr., J.).
The jury's verdict was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490). We find no basis to disturb the jury's determination crediting the identification testimony of the People's witnesses.
While the procedure employed by the trial court for responding to an inquiry from the jury, in which it requested a read-back of a portion of its charge on the law, failed to follow the precise sequence set forth in People v. O'Rama ( 78 N.Y.2d 270, 276-278), defense counsel was given an opportunity to be heard regarding the response prior to the jury's being sent back to deliberate. Although the court should have followed the procedure suggested in O'Rama and would be well advised to do so in the future, there was no inherent prejudice that would preclude harmless error analysis, and, given the overwhelming evidence of guilt, we find the technical error to be harmless (cf., People v. Cook, 85 N.Y.2d 928; see also, People v. Lykes, 81 N.Y.2d 767, 769).
The hearing court properly denied defendant's application to call the complainant as a witness at the Wade hearing and denied defendant's motion to suppress the identification. Although the court failed to make findings of fact or conclusions of law, either orally or in writing, as required, this Court has an adequate record upon which to make its own such findings and conclusions (People v. Jones, 204 A.D.2d 162, lv denied 83 N.Y.2d 968). Accordingly, we find that the lineup was a fair grouping (People v. Maddox, 238 A.D.2d 280, lv denied 90 N.Y.2d 860; People v. Wilson, 239 A.D.2d 264, lv denied 90 N.Y.2d 944). From our review of the record, defendant's argument that the lineup was conducted in an unduly suggestive manner is entirely speculative. We find no evidence of suggestiveness that would have warranted calling the complainant at the hearing (see, People v. Taylor, 80 N.Y.2d 1, 15).
We have considered defendant's remaining arguments and find them to be without merit.
Concur — Sullivan, J. P., Rubin, Mazzarelli and Andrias, JJ.