People v. Wray

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

There is no merit to the defendant’s contention that the court erred by conducting the Wade hearing after opening statements were made, since the defendant "impliedly consented to the irregular procedure” (People v Melendez, 141 AD2d 860, 861; People v Persaud, 218 AD2d 756; see also, People v Orkabi, 160 AD2d 644; cf., People v Correa, 200 AD2d 415). Although the defense counsel had requested a Wade hearing prior to trial, he registered no objection to the timing of the hearing when it was commenced. Rather, the defense counsel permitted the court to conduct the entire hearing and then belatedly objected only after the proceedings were completed. By failing to register an objection at a time when the court was in a position to fashion an appropriate remedy, the defense counsel impliedly consented to the timing of the hearing (see, People v Correa, supra; People v Melendez, supra, at 861).

In any event, the defendant’s claim that he sustained prejudice due to the timing of the hearing is unpersuasive (see, People v Gonzalez, 214 AD2d 451; People v Jones, 203 AD2d 183). The defendant argues, inter alia, that at the Wade hearing, one of the prosecution’s witnesses was unable to identify him as the perpetrator and that the defense counsel was therefore unable to utilize this testimony in his opening statement. However, the witness’s hearing testimony regarding his inability to identify the defendant was repeated in detail at trial and the defense counsel was able to vigorously argue this fact to the jury in summation. Notably, there was nothing in the defense counsel’s opening statement which prevented him from later exploiting, to the fullest extent, any weaknesses or inconsistencies which subsequently arose in the People’s identification evidence. Under these circumstances, the fact that the defense counsel did not specifically mention the witness’s hearing testimony in his opening did not in any way inhibit him from later presenting the most effective theory of misidentification which the evidence would support.

Further, although the court did err in admitting the showup testimony of witness Craig Williams, any error was harmless. Notably, Williams was not only unable to identify the defendant as the perpetrator at trial, he was also unable to testify that the person he viewed during the showup was the defendant.

The court’s denial of the defendant’s request for a transcript of the Wade hearing was not improper, as the defendant’s request was untimely (see, Matter of Eric W., 68 NY2d 633).

We have examined the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Copertino and Hart, JJ., concur.