People v. Oliver

316 N.E.2d 578, 34 N.Y.2d 859, 359 N.Y.S.2d 112, 1974 N.Y. LEXIS 1460

Opinion

Memorandum : Prior to the passage of the new Criminal Procedure Law, it would have been proper for the Trial Judge, under certain circumstances, to deny a motion for a pretrial hearing to determine if pretrial photographic identification was improperly obtained (People v. Ganci, 27 N Y 2d 418, 427). The new Criminal Procedure Law, however, changes that rule and makes a requested pretrial hearing mandatory in a case such as the one at bar. (See CPL 710.20, subd. 5; 710.30, subd. 2; 710.40; see, also, People v. Harrington, 31 N Y 2d 785, 786.) It was therefore error to deny the motion for a pretrial hearing in this case. However, we agree with the Appellate Division that, given the overwhelming proof of guilt apart from the contested identification testimony, the error was harmless beyond a reasonable doubt.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur.

Order affirmed in a memorandum.