Opinion
KA 01-01489
May 2, 2003.
Appeal from a judgment of Monroe County Court (Schwartz, J.), entered May 10, 2001, convicting defendant after a jury trial of assault in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (ELIZABETH CLARKE OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law 120.05). We reject defendant's contention that County Court erred in refusing to conduct a Wade hearing. Civilian-initiated identification procedures do not require a Wade hearing ( see People v Dixon, 85 N.Y.2d 218, 222; People v. Harris, 288 A.D.2d 20, lv denied 97 N.Y.2d 755; People v. Lewis, 258 A.D.2d 287, 288; People v. Rumph, 248 A.D.2d 142, lv denied 92 N.Y.2d 860). Here, the court had sufficient evidence before it, based on the testimony at the preliminary hearing, to determine as a matter of law that the identification procedure was initiated by the victim and that a Wade hearing therefore was not required ( see Rumph, 248 A.D.2d at 142).