        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

314
KA 14-01513
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

ERIC SMITH, DEFENDANT-APPELLANT.


KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the   Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered July   21, 2014. The judgment convicted
defendant, upon a jury verdict, of   assault in the first degree and
criminal possession of a weapon in   the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the first degree (Penal Law
§§ 20.00, 120.10 [1]) and criminal possession of a weapon in the
second degree (§ 265.03 [3]). We reject defendant’s contention that
the victim’s in-court identification of him should have been precluded
because of the People’s failure to provide adequate notice pursuant to
CPL 710.30. Even assuming, arguendo, that the People failed to comply
with the notice provision of CPL 710.30, the record establishes that
defendant moved to suppress the identification made by the victim, and
that such motion was denied after a Wade hearing. Thus, “[s]ince the
defendant here moved to suppress the identification testimony [of the
victim] and received a full hearing on the fairness of the
identification procedure, any alleged deficiency in the notice
provided by the People was irrelevant” (People v Kirkland, 89 NY2d
903, 905; see CPL 710.30 [3]; People v Green, 90 AD3d 1151, 1152, lv
denied 18 NY3d 994; see generally People v Simpson, 35 AD3d 1182,
1183, lv denied 8 NY3d 990). In any event, we conclude that any error
in admitting identification testimony from the victim is harmless.
The proof of defendant’s guilt is overwhelming, and there is no
significant probability that the jury would have acquitted defendant
in the absence of the victim’s identification of defendant (see
generally People v Arafet, 13 NY3d 460, 467; People v Crimmins, 36
                            -2-                  314
                                           KA 14-01513

NY2d 230, 241-242).




Entered:   April 29, 2016         Frances E. Cafarell
                                  Clerk of the Court
