Opinion
Argued June 3, 1974
Decided June 26, 1974
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, HAROLD L. WOOD, J., TIMOTHY J. SULLIVAN, J.
Joseph P. Kirley for appellant.
Carl A. Vergari, District Attorney ( Janet Cunard of counsel), for respondent.
MEMORANDUM: Prior to the passage of the new Criminal Procedure Law, it would have been proper for the Trial Judge, under certain circumstances, to deny a motion for a pretrial hearing to determine if pretrial photographic identification was improperly obtained ( People v. Ganci, 27 N.Y.2d 418, 427). The new Criminal Procedure Law, however, changes that rule and makes a requested pretrial hearing mandatory in a case such as the one at bar. (See CPL 710.20, subd. 5; 710.30, subd. 2; 710.40; see, also, People v. Harrington, 31 N.Y.2d 785, 786.) It was therefore error to deny the motion for a pretrial hearing in this case. However, we agree with the Appellate Division that, given the overwhelming proof of guilt apart from the contested identification testimony, the error was harmless beyond a reasonable doubt.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, RABIN and STEVENS concur.
Order affirmed in a memorandum.