People v. Scott ( 1994 )

—Judgment unanimously affirmed. Memorandum: We reject defendant’s contention that County Court should have held a midtrial Wade hearing sua sponte. Defendant, represented by an Assistant Public Defender, requested and was granted a pretrial Wade hearing. Immediately before the hearing was to commence, defense counsel and the prosecutor agreed that the identification of defendant by bank personnel from a photograph taken by a bank camera was "confirmatory” and, therefore, that a hearing was unnecessary. At trial, however, a different Assistant Public Defender represented defendant and objected to the testimony of one of the bank tellers, who was about to identify defendant. There is no indication in the record and defendant does not assert that he waived the Wade hearing because of an erroneous representation by the People or faulty knowledge regarding the substance of the teller’s identification testimony, or that his waiver was not otherwise knowing and intelligent (see, People v Pobliner, 32 NY2d 356, cert denied 416 US 905; cf., People v Jackson, 150 AD2d 491). Further, it appears that the teller’s in-court identification of defendant was independently based upon her viewing of defendant, a depositor of the bank, at least three times a week over a two month period (see, People v Perez, 139 AD2d 460, affd 74 NY2d 637). Error, if any, in admitting the teller’s testimony concerning prior identification of defendant in a bank photograph was harmless. Not only did other witnesses positively identify defendant at trial, but defendant himself admitted that he was the individual in the bank photograph (see, People v Crimmins, 36 NY2d 230, 241).

The court was not required to inquire of defendant whether he was aware of his right to testify and whether he waived that right (see, People v Fratta, 83 NY2d 771). (Appeal from Judgment of Monroe County Court, Egan, J. — Criminal Possession Forged Instrument, 2nd Degree.) Present — Pine, J. P., Fallon, Callahan, Davis and Boehm, JJ.