Opinion
February 27, 1989
Appeal from the Supreme Court, Kings County (Quinones, J.).
Ordered that the judgment is affirmed.
The defendant's first trial on the charges of which he was ultimately convicted ended with the jury unable to reach a verdict. The retrial was held approximately four months after the conclusion of the first trial. On the first day of the retrial, the People gave notice of their intention to use in their direct case an identification of the defendant made by the complainant at the Wade hearing held prior to the first trial. Over the defendant's objection that, inter alia, the People had failed to provide timely notice pursuant to CPL 710.30, the trial court permitted the testimony. We find that the trial court erred in this determination. The People had ample time between the conclusion of the first trial and the beginning of the retrial to provide the defendant with notice pursuant to CPL 710.30. By failing to provide notice until the day the retrial was to begin, notice was untimely (see, People v O'Doherty, 70 N.Y.2d 479, 481; cf., People v Magazine, 106 A.D.2d 473). As the People do not even argue that there was good cause for their failure to timely serve notice, the fact that the defendant moved for a Wade hearing after he protested the timeliness of the notice does not act as a waiver of his objection to the notice (see, People v Miller, 142 A.D.2d 760; People v Bernier, 141 A.D.2d 750, lv granted 72 N.Y.2d 955). Nevertheless, because the evidence of the defendant's guilt is overwhelming, the error must be deemed harmless (see, People v Lubarska, 143 A.D.2d 1048).
We have considered the defendant's remaining contention and find that it is without merit. Thompson, J.P., Kunzeman, Spatt and Balletta, JJ., concur.