Opinion
November 13, 1990
Appeal from the County Court, Westchester County (Rosato, J.).
Ordered that the judgment is affirmed.
During his trial testimony, one of the People's witnesses, for the first time, identified the defendant as having been present at a time and location proximate to the crime. The defendant contended that the in-court identification was improper because the People had failed to give notice pursuant to CPL 710.30. "However, the notice required by CPL 710.30 (1) (b) pertains to an anticipated in-court identification by a witness who has previously identified a defendant" (People v. Dozier, 150 A.D.2d 483, 484). Here, since the witness had failed to make a previous identification of the defendant, no such notice was required (see, People v. Monroig, 111 A.D.2d 935). Therefore, the trial court properly admitted the in-court identification. We note that the defendant had the opportunity, on cross-examination, to explore the witness's failure to identify the defendant from a photographic array.
We have examined the defendant's remaining contentions and find them to be without merit. Sullivan, J.P., Rosenblatt, Miller and Ritter, JJ., concur.