By order dated April 13, 2010, the District Court granted Matos' motion to dismiss the simplified traffic informations under CPL 170.30 (1) (g), and denied the People's motion for leave to amend. The District Court improperly denied the People's motion for leave to amend the seven simplified informations as it is well settled that "an error in description or name may be corrected or disregarded, and where a defendant is indicted by a fictitious or erroneous name, his true name may be inserted whenever that is discovered" (People v Iqbal, 31 Misc 3d 94, 96 [App Term, 9th & 10th Jud Dists 2011]; see People v Ganett, 51 NY2d 991 [1980]; People v Bogdanoff, 254 NY 16, 29 [1930]; People v Mezzapella, 19 AD2d 729 [1963]). In view of the foregoing, and under the circumstances presented, it was error for the District Court to dismiss the seven simplified traffic informations (see generally People v Johnson, 253 AD2d 702 [1998]).
In People v Ganett ( 51 NY2d 991), the Court of Appeals held that it was error for the trial court to deny the People's motion to amend an indictment to substitute the name of Sabu Gary, the true name of the defendant, for the erroneous name appearing in the indictment. Similarly, in People v Mezzapella ( 19 AD2d 729), when the prosecution learned of the defendant's true name, the indictment was corrected accordingly. In view of the foregoing, and under the circumstances presented, it was error for the District Court to dismiss the four simplified traffic informations where the People in their opposition to the motion by Waqas Iqbal indicated their desire to have the simplified traffic informations amended to substitute the name of Jamal Iqbal ( see generally People v Johnson, 253 AD2d 702).
But it did not sufficiently relate the meagre evidence as to identification adduced before the jury with the requirements of law regarding identification. In these circumstances, it cannot be said that the prosecutor based his summation on the evidence before the jury (People v Mezzapella, 19 A.D.2d 729-730) or that the trial court met its responsibility to "explain the application of the law to the facts" (CPL 300.10, subd 2). Concur โ Birns, J.P., Evans, Lane and Markewich, JJ.
There was no basis in the record for these statements. In view of the fact that the People's entire case rested upon the credibility of this witness, we are of the opinion that these comments deprived defendant of a fair trial ( People v. Mezzapella, 19 A.D.2d 729; People v. Damon, 24 N.Y.2d 256, 259; People v. Webb, 23 A.D.2d 893). At the new trial the "UF-61" police report sought to be introduced into evidence by defendant should be admitted into evidence if it indicates that the source of the information contained in it was the complaining witness. The fact that the officer who recorded the entry was not the officer who obtained the information does not impair the admissibility of the report under the business record rule. If the complaining witness was the source of the information it should have been admitted in evidence as a statement inconsistent with his testimony at the trial that he had immediately identified defendant as the perpetrator (5 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 4518.
(Cf. People v. Mezzapella, 19 A.D.2d 729.) We further believe that it was error to have admitted into evidence People's Exhibits 21 and 40, a tan plastic bag and its contents.
Judgment of the Supreme Court, Kings County, rendered November 30, 1965, affirmed. While it is error to permit a witness to testify as to his prior identification of a defendant by means of photographs ( People v. Cioffi, 1 N.Y.2d 70; People v. Giamario, 20 A.D.2d 815, affd. 15 N.Y.2d 939) and the references by the District Attorney and the court to such testimony were improper (see, e.g., People v. Hunnicutt, 15 A.D.2d 536; People v. Mezzapella, 19 A.D.2d 729), that does not, in our judgment, necessitate a new trial. The evidence of the complaining witnesses as to identification was positive and convincing. They had defendant under observation for three minutes, in a store illuminated with six fluorescent lights and while they were in close proximity to him.
A new trial is required in the interests of justice, even in the absence of objection or exception to some of the improprieties mentioned (cf. People v. De Jesus, 11 A.D.2d 711; People v. Mezzapella, 19 A.D.2d 729). Brennan, Rabin and Hopkins, JJ., concur; Beldock, P.J., and Christ, J., dissent and vote to affirm the judgments with the following memorandum:
In our opinion, this prejudiced the right of the defendant to an impartial consideration of the competent evidence adduced upon the trial (cf. People v. Vollmer, 299 N.Y. 347; People v. Reger, 13 A.D.2d 63). Justice requires a new trial, even in the absence of objection or exception to the impropriety (Code Crim. Pro., ยง 527; People v. Mezzapella, 19 A.D.2d 729). It should also be noted that the District Attorney is in accord with the views here expressed. In his brief he urges that the judgment of conviction be reversed and a new trial ordered on the ground stated.