People v. Geralds

29 A.D.2d 984, 290 N.Y.S.2d 10, 1968 N.Y. App. Div. LEXIS 4203

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 1968
• Status: Published

Opinion

Judgment of the County Court, Nassau County, rendered May 7, 1965, affirmed. In our opinion, the evidence was sufficient to find the defendant guilty beyond a reasonable doubt. The evidence bearing upon the identification of the defendant was of significantly greater probative value than that bearing upon the codefendant, Charles Noland, whose conviction was reversed and a new trial ordered by this court (see People v. Noland, 27 A D 2d 663). The defendant is not entitled to relief under United States v. Wade (388 U. S. 218) in connection with his claim that he was not represented by counsel during his pretrial confrontations with the People’s witnesses since those confrontations predated that decision by three years. The rule in Wade is not to be applied retroactively (Stovall v. Denno, 388 U. S. 293). We agree with defendant’s contention that the failure by the police to employ a lineup in connection with those confrontations constituted a deprivation of due process of law. In our opinion, however, the opportunity which Mrs. Hartley had to observe the defendant during the commission of the crime was such that “it is manifest that her courtroom testimony identifying him was not based on, or tainted by, the potentially misleading circumstances which attended her earlier identification of him at the police station ” (People v. Brown, 20 N Y 2d 238, 244). In view of the quality of Mrs. Hartley’s testimony, we find that any error in connection with the admission of Mrs. Sperling’s in-court identification testimony may be considered to be harmless (Code Grim. Pro., § 542). Defendant’s other contentions have been considered and rejected. Beldock, P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.