People v. Bell

161 A.D.2d 1137, 555 N.Y.S.2d 948, 1990 N.Y. App. Div. LEXIS 9113

Opinion

Judgment unanimously affirmed. Memorandum: Defendant seeks reversal of his judgment of conviction, arguing that the November 1, 1986 amendment to CPL 710.60 (3) (b), which relieves the defense of the burden of alleging a factual basis for the legal ground stated in support of a motion for a Wade hearing, must be applied retroactively; that the court erred in its Sandoval ruling; that the sentence was harsh and excessive; and that the evidence identifying defendant as the perpetrator of the crime was insufficient to support the verdict.

None of the arguments is meritorious and only one requires comment. The amendment to CPL 710.60 (3) (b) (L 1986, ch 776) became effective November 1, 1986, four months after the determination of defendant’s Wade motion. Under CPL 1.10 (3), the provisions of the CPL are not to be given retroactive application so as to "impair or render ineffectual any proceedings or procedural matters which occurred prior to the effective date thereof.” The motion to suppress the identification testimony was a proceeding or procedural matter which occurred prior to the effective date of the amendment to the CPL, and thus the amendment cannot be applied retroactively to affect the determination of the motion. (Appeal from judgment of Supreme Court, Erie County, Marshall, J.—burglary, second degree.) Present—Doerr, J. P., Boomer, Green, Lawton and Lowery, JJ.