People v. Allen

Judgment unanimously affirmed. Memorandum: Defendant contends that Supreme Court erred in limiting his testimony regarding a statement by an unknown third person that he had overheard a couple of weeks before the assault to the effect that the victim used cocaine. Defendant was permitted to testify concerning that person’s statement to "watch out” for the victim because he carried a weapon. There is no basis to disturb the court’s ev

Defendant further contends that the court erred for several reasons in failing to preclude an eyewitness’ identification of defendant. We disagree. Defendant waived any challenge to the adequacy of the CPL 710.30 notice (see, People v Merrill, 226 AD2d 1045 ). Additionally, the record supports the court’s determination, after a Rodriguez hearing (see, People v Rodriguez, 79 NY2d 445 , 450-452), that the People met their burden of showing that the identification was confirmatory (see, People v Rodriguez, supra, at 452 ; People v Wharton, 74 NY2d 921 ). Thus, "suggestiveness” is not a concern and CPL 710.30 is not implicated. Furthermore, defendant’s identity is not in issue in this case (see, People v Gissendanner, 48 NY2d 543 , 552). Defendant acknowledged that he engaged in a fight with the victim, whom he knew. In any event, even assuming, arguendo, that the court erred in failing to preclude the identification testimony, the error is harmless (see, People v King, 192 AD2d 556 , 557, lv denied 81 NY2d 1075 ; People v Livingston, 186 AD2d 1076 , lv denied 81 NY2d 791 ). (Appeal from Judgment of Supreme Court, Monroe County, Wisner, J.—Assault, 1st Degree.) Present—Green, J. P., Pine, Wesley, Callahan and Davis, JJ.