Opinion
314 KA 14-01513.
04-29-2016
The PEOPLE of the State of New York, Respondent, v. Eric SMITH, Defendant–Appellant.
Kathryn Friedman, Buffalo, for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Daniel J. Punch of Counsel), for Respondent.
Kathryn Friedman, Buffalo, for Defendant–Appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Daniel J. Punch of Counsel), for Respondent.
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, and TROUTMAN, JJ.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law §§ 20.00, 120.10 [1 ] ) and criminal possession of a weapon in the second degree (§ 265.03[3] ). We reject defendant's contention that the victim's in-court identification of him should have been precluded because of the People's failure to provide adequate notice pursuant to CPL 710.30. Even assuming, arguendo, that the People failed to comply with the notice provision of CPL 710.30, the record establishes that defendant moved to suppress the identification made by the victim, and that such motion was denied after a Wade hearing. Thus, “[s]ince the defendant here moved to suppress the identification testimony [of the victim] and received a full hearing on the fairness of the identification procedure, any alleged deficiency in the notice provided by the People was irrelevant” (People v. Kirkland, 89 N.Y.2d 903, 905, 653 N.Y.S.2d 256, 675 N.E.2d 1208 ; see CPL 710.30[3] ; People v. Green, 90 A.D.3d 1151, 1152, 934 N.Y.S.2d 262, lv. denied 18 N.Y.3d 994, 945 N.Y.S.2d 649, 968 N.E.2d 1005 ; see generally People v. Simpson, 35 A.D.3d 1182, 1183, 826 N.Y.S.2d 547, lv. denied 8 N.Y.3d 990, 838 N.Y.S.2d 494, 869 N.E.2d 670 ). In any event, we conclude that any error in admitting identification testimony from the victim is harmless. The proof of defendant's guilt is overwhelming, and there is no significant probability that the jury would have acquitted defendant in the absence of the victim's identification of defendant (see generally People v. Arafet, 13 N.Y.3d 460, 467, 892 N.Y.S.2d 812, 920 N.E.2d 919 ; People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.