People v. Polite

228 A.D.2d 705, 644 N.Y.2d 977, 644 N.Y.S.2d 977, 1996 N.Y. App. Div. LEXIS 7389

Opinion

There is no merit to the defendant’s contention that the trial court erred in permitting third-party testimony that the complainant identified the defendant at the time of his arrest, 10 minutes after the crime, where the complainant was unable to positively identify the defendant at trial as one of the men who robbed him.

CPL 60.25 allows third-party testimony where a witness has validly identified a defendant on a prior occasion and is unable to make an identification at trial because of a lack of a present recollection (see, People v Hernandez, 154 AD2d 197; People v Hudson, 201 AD2d 503). The trial court’s finding here that the complainant could not identify the defendant because of a lack of a present recollection is supported by the evidence. Sullivan, J. P., Joy, Krausman and McGinity, JJ., concur.