THE PEOPLE &C., RESPONDENT, v. ERICK CLARK, APPELLANT.
88 N.Y.2d 552, 670 N.E.2d 980, 647 N.Y.S.2d 479 (1996).
July 2, 1996
2 No. 165 (1996 NY Int. 154)
Decided July 2, 1996
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Kevin F. Casey, for Appellant.
Ruth E. Ross, for Respondent.
BELLACOSA, J.:
The sole issue on this appeal is whether the trial court acted within
its legislatively prescribed discretion in denying defendant's
application to reopen its pretrial Wade determination (CPL 710.40(4);
see, People v Fuentes, 53 NY2d 892). The Appellate Division affirmed
defendant's conviction for attempted robbery, after a jury trial, and
a Judge of this Court granted leave to appeal. We conclude that the
Appellate Division did not err in affirming the trial court's ruling,
which denied the application at trial to reopen the Wade hearing and
determination.
At approximately 11:00 a.m. on April 20, 1992, victim Ronald Cuocolo
was making a delivery at a warehouse in Brooklyn when he was accosted
in an interior corridor. The perpetrator demanded money from him and
when he refused, a struggle ensued during which Cuocolo was injured.
The perpetrator fled the building with Cuocolo and other occupants who
had been alerted to the incident in pursuit. During the brief chase,
Cuocolo came upon police officers who joined the chase by following
Cuocolo. When Cuocolo caught up to the perpetrator outside a vacant
lot about two blocks from the attack, he motioned towards his
attacker, who was standing on the sidewalk. The police then made the
arrest.
The People properly notified defendant pursuant to CPL 710.30(1)(b)
that Cuocolo had identified the defendant in a "corporeal non-lineup."
Defendant by omnibus motion moved for suppression of the victim's
identification and a Wade hearing was granted.
The arresting officer was the only witness at the hearing. He
testified that within ten minutes after the robbery, the victim
SNIPPETS:
The sole issue on this appeal is whether the trial court acted within its legislatively
The Appellate Division affirmed defendant's conviction for attempted robbery, after a jury
We conclude that the Appellate Division did not err in affirming the trial court's ruling,
At approximately 11:00 a.m. on April 20, 1992, victim Ronald Cuocolo was making a delivery at
The perpetrator fled the building with Cuocolo and other occupants who had been alerted to
Cuocolo came upon police officers who joined the chase by following Cuocolo.
The People properly notified defendant pursuant to CPL 710.30that Cuocolo had identified the
The officer recollected that the victim was in the back seat of the patrol car at that time.
The hearing court denied suppression of the victim's identification, finding no taint of
At the close of the People's opening statement at trial, however, defendant orally renewed
Defense counsel had become aware at that time that the victim had testified to the Grand Jury
He used his own car, with the police joining the uninterrupted chase within minutes and
Notably, this circumstance and issue are materially distinguishable from People v Geaslen,
It acknowledged, however, and weighed the differences between the two witnesses' testimony,
If after a pretrial determination and denial of the motion the court is satisfied, upon a
In construing and applying this statutory prescription to the record of this case, this Court
To suggest here that this standard was met as a matter of law and that the victim-initiated
Testimony provided by a prosecution witness at the hearing established that the
In describing the procedure at length, the police witness specifically stated that he and his
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