Opinion
September 18, 1995
Appeal from the Supreme Court, Kings County (Barasch, J.).
Ordered that the judgment is affirmed.
On appeal, the defendant contends, inter alia, that he was deprived of his right to due process because the hearing court denied his request to call civilian identification witnesses at the Wade hearing and that the showup that resulted in the defendant's arrest was unduly suggestive. It is settled law that a defendant does not have an absolute, unqualified right to examine a complaining or identifying witness at a Wade hearing (see, People v Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833; People v Harvall, 196 A.D.2d 553; People v Christenson, 188 A.D.2d 659). To the contrary, this right is triggered only when the hearing record raises substantial issues as to the constitutionality of the identification procedure (see, People v Chipp, supra), when the People's evidence is "notably incomplete" (see, People v Hoehne, 203 A.D.2d 480; People v Sokolyansky, 147 A.D.2d 722), or when the defendant otherwise establishes a need for the witness's testimony (see, People v Harvall, supra; People v Ocasio, 134 A.D.2d 293).
Contrary to the defendant's contention, the testimony presented at the Wade hearing failed to raise a substantial issue as to the constitutionality of the identification procedure. Showups that are conducted in close temporal and spatial proximity to the commission of the crime being investigated are generally permissible (see, People v Duuvon, 77 N.Y.2d 541; People v Holley, 205 A.D.2d 638; People v Mitchell, 185 A.D.2d 249). Given the circumstances present in this case, we do not find that the identification procedure which was conducted while the defendant was handcuffed was constitutionally impermissible (see, People v Bitz, 209 A.D.2d 709; People v Grassia, 195 A.D.2d 607; People v Rowlett, 193 A.D.2d 768; People v Jenkins, 175 A.D.2d 648).
Any error in permitting the prosecution to elicit testimony from one of the police officers which inferentially bolstered the testimony of a witness who saw the defendant on the subway tracks (see, People v Trowbridge, 305 N.Y. 471; see also, People v Holt, 67 N.Y.2d 819; People v Gordillo, 191 A.D.2d 455; People v Bryan, 179 A.D.2d 667; People v Vasquez, 120 A.D.2d 757) must be considered harmless in view of the strong and positive identification that was made within minutes after the crime (see, People v Colon, 188 A.D.2d 409; People v Burgess, 66 A.D.2d 667) and the other overwhelming evidence of the defendant's guilt (see, e.g., People v Gordillo, supra; People v Jones, 186 A.D.2d 585).
The court's charge, when taken as a whole, properly conveyed the requirement that the defendant's identity must be proven beyond a reasonable doubt (see, People v Canty, 60 N.Y.2d 830; People v Vasquez, 176 A.D.2d 444). O'Brien, J.P., Santucci, Joy and Goldstein, JJ., concur.