SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
April 22, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
MELVIN GERALDS, ALSO KNOWN AS MELVIN GEARLDS, APPELLANT
Judgment of the County Court, Nassau County, rendered May 7, 1965, affirmed.
Beldock, P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.
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 co-defendant, 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 Crim. Pro., § 542). Defendant's other contentions have been considered and rejected.
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