People v. Walker

256 A.D.2d 1183, 683 N.Y.S.2d 446, 1998 N.Y. App. Div. LEXIS 14329

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing in accordance with the following Memorandum: Supreme Court properly denied defendant’s motion to preclude the identification testimony of Wayne Jones. Although no CPL 710.30 notice had been served regarding Jones, the evidence at this bench trial supports the court’s conclusion that, although Jones was present at the robbery scene when defendant was returned for a Showup, Jones did not identify himself to the officer conducting the showup or make an identification of defendant. Because there was no prior identification of defendant by Jones, a CPL 710.30 notice was not required (see, People v Trammel, 84 NY2d 584, 587-588). Even assuming, arguendo, that the denial of the motion to preclude was erroneous, we conclude that the error is harmless (see, People v Bradshaw, 223 AD2d 651, 652, lv denied 88 NY2d 876).

The conviction is not against the weight of the evidence. Although there were inconsistencies in the testimony of the various eyewitnesses, we cannot conclude that the court failed to give the evidence the weight it should be accorded (see, People v Bleakley, 69 NY2d 490, 495).

The People concede that defendant was erroneously sentenced to indeterminate terms of imprisonment (see, Penal Law § 70.06 [6] [a]). Consequently, the judgment must be modified by vacating the sentence, and we remit the matter to Supreme Court for resentencing. (Appeal from Judgment of Supreme Court, Erie County, Howe, J. — Robbery, 1st Degree.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Boehm, JJ.