106 A.D.2d 473, People v. Magazine

Citation:106 A.D.2d 473, 482 N.Y.S.2d 569
Party Name:People v. Magazine
Case Date:December 10, 1984
Court:New York Supreme Court Appelate Division, Second Department

Page 473

106 A.D.2d 473

482 N.Y.S.2d 569

The PEOPLE, etc., Respondent,


Albert MAGAZINE, Appellant.

Supreme Court of New York, Second Department

December 10, 1984.

[482 N.Y.S.2d 570] William E. Hellerstein, New York City (Debra Marcus, New York City, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Andrew Zwerling, Kew Gardens, of counsel), for respondent.



Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered November 3, 1980, convicting him of four counts of robbery in the first degree and two counts of robbery in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

At 1:45 A.M., while on their way home from a date, the two complaining witnesses were robbed at gun point by two individuals. After the robbers had fled, the complainants rode through the neighborhood with the police in search of the perpetrators. About twenty-five minutes later, the defendant, who was seated on a park bench some five to six blocks from where the robbery took place, was identified by the complainants as one of the individuals who had robbed them. He was thereupon arrested.

Prior to trial, the defendant moved to suppress the prospective in-court identifications of him on the ground that they were tainted by the showup which he argued was suggestive. A Wade hearing was thereupon conducted, following which the court denied the motion. When the matter eventually came on for trial some six months later, the prosecutor stated for the first time that he intended to refer in his opening statement to not only the complaining witnesses' identifications of defendant at the park bench showup at the time of his arrest, but also at both the preliminary hearing conducted shortly after the defendant's arrest and at a Wade hearing. Following defense counsel's objection that such references would improperly bolster the complaining witnesses' identification of the defendant, the court ruled that the prosecutor would be permitted to comment only to the extent of stating that the complaining witnesses had identified the defendant following the incident in question.

After the opening statements, the prosecutor requested that he be permitted to inquire of the complaining witnesses during his direct case as to whether they had identified defendant at two prior court proceedings. Defense counsel objected upon the ground that the People had failed to provide notice of their intention to introduce such identification testimony at trial as required by CPL 710.30. Although the [482 N.Y.S.2d 571] People had served a notice pursuant to that section, it referred only to an intention to offer testimony regarding the showup at the time of the defendant's arrest; it did not relate to the identifications at the two court hearings. Alternatively, the defendant argued that if the court were to rule that the People were not precluded from offering said identification testimony by their failure to provide notice, then he was entitled to a further Wade hearing to contest the admissibility of the testimony and he requested a one-day adjournment to prepare for this new Wade hearing.

Criminal Term ruled that since testimony regarding the identifications made at the prior court proceedings was admissible pursuant to CPL 60.30, these identifications were subject to challenge as being suggestive. Nonetheless, the court held that, under the circumstances of this case, defendant was not entitled to another Wade hearing. The court noted that it itself had presided at the prior Wade hearing, that it had been...

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