Opinion
March 30, 1992
Appeal from the County Court, Suffolk County (Vaughn, J.).
Ordered that the judgment is affirmed.
The defendant contends that because of erroneous pretrial Wade rulings, a new trial is required. We disagree. The trial court should not have allowed the complainant Collins to make an in-court identification of the defendant because he had viewed an unduly suggestive photographic array of the defendant and subsequently failed to testify at the "independent basis" hearing (see, People v Ryan, 147 A.D.2d 508; People v Riley, 70 N.Y.2d 523). However, it is nevertheless clear from this record that the complainant Norton never viewed the improper photographic array and that his in-court identification at trial was thus properly admitted. Further, because Norton's testimony provided overwhelming evidence as to defendant's guilt, Collins' in-court identification must be deemed harmless (see, People v Crimmins, 36 N.Y.2d 230). In this regard, we note the extremely detailed description of the defendant's appearance and of the incident itself which Norton provided, the unequivocal nature of Norton's lineup and in-court identifications, and the proximity and duration of his observations of the defendant under good lighting conditions during the commission of the robbery.
We further reject the defendant's claim that the court improperly allowed the prosecutor to recall one of the defendant's alibi witnesses in order to rebut the witness's prior testimony as to his record of convictions. The court properly exercised its discretion in allowing the witness to be recalled (see, People v Mercado, 134 A.D.2d 292). When a witness denies on cross-examination that he has previously been convicted of a crime, the cross-examiner is not bound by the answer; pursuant to statute (CPL 60.40) the judgment of conviction is admissible to affect his credibility (see, Richardson, Evidence § 491 [Prince 10th ed]).
We have examined the defendant's remaining contention and find it to be without merit. Harwood, J.P., Balletta, Lawrence and Miller, JJ., concur.