The People, Respondent,v.Kaity Marshall, Appellant.BriefN.Y.November 17, 2015COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK , Respondent , -against- KAITY MARSHALL , Defendant - Appellant . RESPONDENT ' S BRIEF LEONARD JOBLOVE CAMILLE O' HARA GILLESPIE DIANE R . EISNER Ass i stant District Attorneys of Counsel March 20 , 2015 Telephone : 718-250 - 2489 Facsimile : 718-250- 2549 To be argued by : DIANE R. EISNER (1 5 Minutes) APL-2014-00196 Kings County Docket Number 2008KN075233 KENNETH po. THOMPSON DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JAY STREET BROOKLYN,NEWYORK 11201-2908 (718) 250-2000 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES .................. . ...................... iii QUESTIONS PRESENTED .......................................... vii PRELIMINARY STATEMENT .......................................... 1 STATEMENT OF FACTS . ......... ..............•.................... 2 Introduction .............................................•. 2 The Notification of a Pretrial Photographic Display ........ 3 The Pretrial Hearing .......•.......•....................... 4 The People's Case ...•................................. 4 Colloquy During the Complainant's Testimony ........... 7 Colloquy Following the Hearing Testimony .............. 7 The Court's Viewing of the Photograph ................. 8 The Post-Hearing Submissions .......................... 8 The Hearing Court's Decision ......................... 11 The Trial ................................................. 12 The People's Case ...................•..•.•.......•.. 13 The Defense Case ........................•............ 19 The People's Rebuttal Case ........ . .................. 22 The Verdict and Sentence ............................. 23 The Appeal to the Appellate Term ........... ............... 24 SUMMARY OF ARGUMENT ....................•..•................... 26 POINT I - THE PROSECUTOR'S BRIEF DISPLAY OF A PHOTOGRAPH OF DEFENDANT TO THE COMPLAINANT DURING TRIAL PREPARATION WAS NOT AN IDENTIFICATION PROCEDURE. IN ANY EVENT, THE DISPLAY OF DEFENDANT'S PHOTOGRAPH DID NOT TAINT THE COMPLAINANT'S IN-COURT IDENTIFICATION OF DEFENDANT. FURTHERMORE, ANY ERROR IN ADMITTING THAT IN-COURT IDENTIFICATION WAS HARMLESS ................. . ... 28 TABLE OF CONTENTS (cont'd) A. The Display of the Photograph to the Complainant Was Not an Identification Procedure, Because the Complainant Did Not Identify Defendant from the PAGE Photograph ........................................... 29 B. Even If the Complainant Had Recognized Defendant in the Photograph, the Prosecutor's Display of the Photograph During Trial Preparation Was Not an Identification Procedure ............................ . 33 C. The Hearing Testimony Established that the Complainant Had an Independent Source for Her In- Court Identification ................................. 44 D. Any Error in the Hearing Court's Ruling Was Harmless .............. . .............................. 49 POINT II - THE HEARING COURT DID NOT ERR IN DENYING DEFENDANT'S REQUEST TO CALL THE PROSECUTOR AS A WITNESS AT THE PRETRIAL HEARING. IN ANY EVENT, ANY ERROR IN THAT RULING WAS HARMLESS ...................................... 55 CONCLUSION - THE ORDER OF THE APPELLATE TERM AFFIRMING DEFENDANT'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED ................ 61 ii TABLE OF AUTHORITIES PAGE CASES In re Dashawn R., 120 A.D.3d 1250 (2d Dep't 2014) .............. 32 Manson v. Brathwaite, 432 U.S. 98 (1977) ....................... 47 Neil v. Biggers, 409 U.S. 188 (1972) ........................... 47 People v. Abrew, 95 N.Y.2d 806 (2000) .......................... 58 People v. Adams, 53 N.Y.2d 241 (1981) .......................... 43 People v. Allen, 24 N.Y.3d 441 (2014) .......................... 52 People v. Brown, 86 N.Y.2d 728 (1995) .............. . ........... 53 People v. Burts, 78 N.Y.2d 20 (1991) .......................... 45 People v. Chipp, 75 N.Y.2d 327, cert. denied, 498 U.S. 833 (1990) ................... 43, 46, 55, 56, 57, 58 People v. Clark, 85 N.Y.2d 886 (1995) .......................... 35 People v. Clarke, 5 A.D.3d 807 (3d Dep't 2004) ................. 32 People v. Crimmins, 36 N.Y.2d 230 (1975) ............... 49, 52, 60 People v. Dawson, 50 N.Y.2d 311 (1980) ......................... 52 People v. Dixon, 85 N.Y.2d 218 (1995) .......................... 53 People v. Fluitt, 80 N. Y.2d 949 (1992) .. ........................................ 50, 52 People v. Gee, 99 N. Y.2d 158 (2002) .. .............................................. 31, 36 People v. Gissendanner, 48 N. Y.2d 543 (1979) .. .................................... 34 People v. Harris, 80 N.Y.2d 796 (1992) .. ................................................ 52 People v. Herner, 85 N. Y.2d 877 (1995) .. .................................. 4, passim People v. Holton, 225 A.D.2d 1021 (4th Dep't 1996) .............. 31 iii TABLE OF AUTHORITIES (cont'd) PAGE People v. Hopkins, 284 A. D. 2d 223 (lst Dep't 2001) .. .. " .................... 35 People v. Jackson, 43 A.D.3d 488 (3d Dep't 2007) .. ........ II .... " " .......... 36 People v. Jerold, 278 A.D.2d 804 (4th Dep't 2000) .. .... " ...... " " .... " .. " 36 People v. LeGrand, 8 N. Y.3d 449 (2007 ) " ...... " .. " " ............ " ... " II .............. 38 People v. Lewis, 278 A.D.2d 819 (4th Dep't 2000) .. ............................ 35 People v. Livingston, 186 A.D.2d 1076 (4th Dep't 1992) .. ........ " ...... 52 People v. Malloy , 55 N.Y.2d 296, cert. denied, 459 U.S. 847 (1982) ......................... . ............. 48 People v. Marshall, 23 N.Y.3d 1039 (2014) ........... ... ........ 25 People v. Marshall, No. 2011-999 K CR, 2014 N.Y. Misc. LEXIS 721 (App. Term 2d, 11th & 13th Jud. Dists. Feb. 7, 2014) ... 1, 24 People v. Mato, 83 N. Y.2d 406 (1994) " .. " " .. " ................ It ........................ 53 People v. Monroig, 111 A. D. 2d 936 (2d Dep't 1985) " .......................... 32 People v. Morales, 248 A.D.2d 173 (1st Dep't 1998) .. ........................ 36 People v. Morrison, 244 A.D.2d 168 (1st Dep't 1997) .. ...................... 59 People v. Muhammad, 217 A.D.2d 773 (3d Dep't 1995) .. .................. .. .... 32 People v. Myrick, 66 N.Y.2d 903 (1985) ........................ 50 People v. Ocasio, 134 A.D.2d 293 (2d Dep't 1987) ............... 59 People v. Oliver, 34 N.Y.2d 859 (1974) .. ................................................ 52 People v. Owens, 74 N. Y.2d 677 (1989) .. ................................................ 52 People v. Paden, 158 A.D.2d 554 (2d Dep't 1990) .. .............................. 32 People v. Pagan, 248 A.D.2d 325 (1st Dep't 1998), aff'd, 93 N. Y. 2d 891 (1999) ............................ 30-31 iv TABLE OF AUTHORITIES (cont'd) PAGE People v. Peterkin, 75 N.Y.2d 985 (1990) ....................... 58 People v. Petralia, 62 N.Y.2d 47, cert. denied, 469 U.S. 852 (1984) ......................... 55 People v. Sanchez, 230 A.D.2d 634 (1st Dep't 1996) ............ 59 People v. Sanders, 66 N.Y.2d 906 (1985) ........................ 50 People v. Santiago, 17 N.Y.3d 661 (2011) ....................... 38 People v. Thomas, 60 A.D.3d 1341 (4th Dep't 2009) .............. 30 People v. Trammel, 84 N.Y.2d 584 (1994) ........................ 30 People v. Trottie, 167 A.D.2d 438 (2d Dep't 1990) .............. 32 People v. Wharton, 74 N.Y.2d 921 (1989) ........................ 54 People v. Whaul, 63 A.D.3d 1182 (2d Dep't 2009) ................ 58 People v. Whitehead, 84 A.D.3d 1128 (2d Dep't 2011) ............ 33 People v. Wilson, 5 N.Y.3d 778 (2005) ...................... 45, 46 People v. Witherspoon, 66 N.Y.2d 973 (1985) .................... 55 People v. Young, 7 N.Y.3d 40 (2006) ............................ 47 People v. Young, 20 A.D.3d 893 (4th Dep't 2005) ................ 32 Perry v. New Hampshire, 132 S. Ct. 716 (2012) .................. 47 Simmons v. United States, 390 U.S. 377 (1968) .................. 43 United States v. Garcia, 936 F.2d 648 (2d Cir. 1991) ........... 43 United States v. Marshall, 511 F.2d 1308 (D.C. Cir. 1975) ...... 37 United States v. Thompson, 27 F.3d 671 (D.C. Cir. 1994) ........ 36 United States v. Wade, 388 U.S. 218 (1967) .............. 4, passim v TABLE OF AUTHORITIES (cont'd) PAGE STATUTES AND CONSTITUTIONAL PROVISIONS C.P.L. § 710.30 ............. . ...................... 11, 29, 31, 32 P.L. § 110.00 ............ .. . .... .. .. ............ .. ... 1 , 3 , 23 , 24 P . L . § 120 . 00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1, 3 , 23 P.L . § 120 .1 4 ................................................ 1, 3 P . L. § 120 . 15 ............................................ 1 , 3, 24 P.L. § 240 . 26 ............................................ 1 , 3 , 24 P . L . § 2 65 . 0 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 , 3 , 2 4 N . Y . Canst . art . VI , § 3 (a) ............ . ................... 39 , 47 vi QUESTIONS PRESENTED 1. Whether the Criminal Court correctly found, after a pretrial hearing, that the prosecutor's brief display of defendant's photograph to the complainant during trial preparation was not an identification procedure, where the complainant did not identify defendant from the photograph, the display of the photograph was not conducted for the purpose of establishing the identity of the person who had assaulted the complainant, and the evidence at the hearing showed that the complainant had an independent source for an in-court identification of defendant; and whether, in any event, any error in the court's decision not to conduct a further hearing on the issue of the alleged suggestiveness of the display of the photograph was harmless. 2. Whether the Criminal Court correctly decided that defendant was not entitled to call as a witness at the pretrial hearing the prosecutor who had displayed the photograph to the complainant, where the complainant herself had testified at the hearing; and whether, in any event, any error in the court's ruling that denied defendant's request to call the prosecutor as a witness at the hearing was harmless. vii COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- KAITY MARSHALL, Defendant-Appellant. RESPONDENT'S BRIEF APL-2014-00196 Kings County Docket Number 2008KN075233 PRELIMINARY STATEMENT Defendant, Kaity Marshall, appeals by permission of a judge of this Court from a February 7, 2014 order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts. See People v. Marshall, No. 2011-999 K CR, 2014 N.Y. Misc. LEXIS 721 (App. Term 2d, 11th & 13th Jud. Dists. Feb. 7, 2014), Iv. granted, 23 N.Y.3d 1039 (2014) (Pigott, J.). By that order, the Appellate Term affirmed a judgment of the Criminal Court, Kings County, convicting defendant, after a nonjury trial, of Attempted Assault in the Third Degree (P.L. §§ 110.00/120.00[1]), Attempted Criminal Possession of a Weapon in the Fourth Degree (P. L. §§ 110.00/265.01[2]), Menacing in the Third Degree (P.L. § 120.15), and Harassment in the Second Degree (P.L. § 240.26[1]), and sentencing her to seven days of community service and to participation in an anger management program (Michels, J., at pre- trial hearing; Pickett, J., at trial and sentence). STATEMENT OF FACTS Introduction On July 3, 2008, at approximately 1:30 p.m., sixty-year-old Kathleen Rison and her disabled daughter were seated on a bus in Brooklyn when defendant, Kaity Marshall, stepped on Rison's foot as defendant leaned over Rison to look out the window. Rison asked defendant to get off Rison's foot several times before defendant ultimately complied. When defendant thereafter sat down across the aisle from Rison, Rison asked defendant for an apology, but defendant refused to apologize. Rison criticized defendant for her lack of manners, and defendant began punching Rison in the face. Alerted by screaming passengers, the bus driver saw the attack through his large rearview mirror. The driver saw the faces of both defendant and Rison, and he recognized Rison as someone who frequently rode his bus. When the bus reached a stop, Rison took off her shoe and raised it, but defendant pointed a knife at Rison and threatened to kill her. Defendant moved to the front of the bus and, after straightening her hair in the bus's mirror, left the bus through the front door. Rison also left the bus at that stop. Rison's face was bleeding and bruised from the assault, which she reported to responding police officers. A brief area canvass was 2 unsuccessful, and Rison was thereafter taken by ambulance to the hospital, where she was treated and released. About two months later, on September 10, 2008, while Rison was waiting at the pharmacy at Kings County Hospital, Rison saw defendant and immediately recognized her as the woman who had attacked Rison on the bus. Rison called the police and identified defendant to the responding officers, who arrested defendant. Later that day, at the 71st Precinct, a prisoner movement slip photograph was taken of defendant. For her actions on July 3, 2008, defendant was charged, by an information filed under Kings County Docket Number 2008KN075233, with Assault in the Third Degree (P.L. § 120.00[1]), Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01[2]), Menacing in the Second Degree (P.L. § 120.14[1]), Menacing in the Third Degree (P.L. § 120.15), and Harassment in the Second Degree (P.L. § 240.26[1]). The Notification of a Pretrial Photographic Display At a court appearance on January 6, 2010, the prosecutor who was newly assigned to try this case informed the court that he had met with Kathleen Rison at his office the previous day in order to prepare for trial and that, to aid him in understanding Rison's descriptions of defendant's hairstyles at the time of the crime and on the day of defendant's arrest, he had displayed to Rison the prisoner movement slip photograph of defendant that had been :3 taken on September 10, 2008, the date of defendant's arrest (A36- 37, A45).1 Defense counsel thereafter moved for a hearing pursuant to People v. Herner, 85 N.Y.2d 877 (1995), to determine if the display of defendant's photograph to Rison constituted an identification procedure warranting a Wade hearing (see United States v. Wade, 388 U.S. 218 [1967]) (A18-21). A hearing was held on June 4, 2010, and on June 14, 2010 (A58-59, A80). The Pretrial Hearing The People's Case At the hearing, KATHLEEN RISON described the July 3, 2008 incident in detail, including how, at about 1:35 p.m., a woman had stepped on her foot and had disregarded her repeated requests to move, how Rison had thereafter requested an apology and chastised the woman for her lack of manners, and how that woman had then crossed the bus aisle and repeatedly pummeled Rison in the face (A65-70). Other passengers were screaming and, after Rison had been punched a number of times, she managed to use her feet to push her assailant off her. Rison subsequently removed her own shoe and was prepared to strike her 1 Numbers in parentheses preceded by "A" refer to pages of defendant's appendix. Names preceding the numbers refer to witnesses whose testimony is cited. 4 assailant with it, but Rison was then threatened with a knife by her assailant 0 Her assailant was standing wi thin two feet of her at that time; Rison described that woman as under forty years old, possibly under thirty, but over twenty years old, taller than herself, with a much darker complexion, a "straighterH face, and "a little more nose H (A69-72, A76) 0 Rison also recalled that her assailant had been wearing green- and-white-striped clothing, green earrings, and flat shoes (A69) 0 The incident on the bus lasted five to ten minutes, and Rison got a good look at her assailant's face because she had seen her assailant's face each of the two or three times that she had asked the woman to move off her foot, and during the assault, and during the threat with the knife (A72-74) 0 Nobody had "ever scared [Rison] like that beforeH and she had taken a "good look at her face that [i]f I see her again I sure would know heroH After Rison's assailant threatened her with the knife, that woman left the bus and ran away (A71, A74-75) 0 Rison did not see her assailant again until the morning of September 10, 2008, when Rison observed her, by chance, at Kings county Hospital, where Rison had gone to the pharmacy 0 Rison had no doubt that the woman she saw at the hospital was the same woman who had attacked her on the bus, and Rison summoned the police, who arrested that woman (Rison: A75-79, A83) 0 5 At Rison's meeting with the assigned prosecutor on January 5, 2010, they discussed the case for five to ten minutes and, at some point, the prosecutor showed her a blurry photograph and asked her if she knew the picture (A84, A88-89). Rison just glanced at the photograph, which she "could not see" because it was blurry, she did not hold the photograph in her hand, and she told the prosecutor that it was blurry (A84, A90). When asked if she remembered seeing a photograph of the person who had been arrested on September 10, 2008 during her meeting with the prosecutor, Rison responded, "It was not" (A84) . During cross-examination, Rison repeated that she had never seen a photograph of the woman who was arrested in September (A92). The photograph "did not change [Rison's] mind" about her memory of her attacker (A84). When asked if she had needed to see "that picture" to recognize her attacker, Rison replied that she did not need "any picture to see that person," noting that, despite the passage of months between the assault and her recognition of her assailant at the hospital, she had not seen any photographs to aid in the identification that she made, and that she had remembered her assailant on her own when she saw her (Rison: A84-85, A92-95). 6 Rison did not recall a discussion with the prosecutor about her assailant's hairstyle when she was shown the photograph (A90-9l) . Colloquy During the Complainant's Testimony During Rison's cross-examination, when defense counsel asked Rison what she was doing at the hospital on September 10, 2008, the court precluded that inquiry. The court stated: This [hearing] is about the identification proceeding to the extent that it was questions about whether or not the witness had original opportunity to view the defendant of [sic] the perp that attacked her. If it is one of the same, if you want to inquire on this good faith basis, I think there were [sic] some abili ty of the complainant that may have been impaired. She observe [sic] the defendant in the hospital. This is a different story. I will not allow a fishing expedition. It is not a trial, just if there was an ID procedure. (A96) . Following this statement, defense counsel directed Rison's attention back to the July 3, 2008 incident on the bus. Defense counsel asked Rison whether the people on the bus had been seated, whether Rison's daughter had been with her, and whether anyone had assisted Rison after she was assaulted (A96-97). Colloquy Following the Hearing Testimony After the People rested, defendant asked to call as a wi tness at the hearing the prosecutor who had displayed the 7 photograph. A100) . The court denied the request at that time (A98, Following a bench conference, the court placed on the record that the issue at the hearing was "whether or not it was an ID procedure and if so whether it was suggestive" (A98-99). The court requested memoranda of law regarding the burden of proof at the hearing, and the court asked the parties to address the question of whether the display of the photograph to the complainant was legitimate trial preparation or whether it could be considered an identification procedure, and, if so, whether it was arguably suggestive and warranted a Wade hearing. The court also asked the parties to address the question of whether the defense should have been permitted to call the prosecutor as a witness at the hearing (A98-l00). The Court's Viewing of the Photograph Following the close of the evidentiary portion of the hearing, but before post-hearing memoranda were submitted, the court was shown a picture of the photograph that had been displayed to Rison (A130-3l). The Post-Hearing Submissions The People argued that Rison's viewing of defendant's photograph constituted proper trial preparation under People v. Herner, 85 N.Y.2d 877 (1995), because Rison had previously 8 identified defendant after having independently observed her at Kings County Hospital -- an observation that had led to Rison's spontaneous point-out identification of defendant to responding police officers, for which the People had provided notice pursuant to Criminal Procedure Law § 710.30 (1) (b) . The People further argued that because Rison had testified at the hearing that the photograph that the prosecutor displayed to her was blurry and "that she could not see the picture shown to her and that seeing the picture did not change her memory of the defendant from the time the crime was committed," the People had established that there was no "identification procedure." The People noted that Rison's testimony had established that the prosecutor did not ask Rison to identify the person in the photograph, nor did the prosecutor ask Rison whether or not the photograph was a photograph of the person who had assaulted her. The People argued that Rison's testimony that she could not see the photograph and that it did not change her memory of defendant from the time of the crime established that the display of the photograph did not create a risk that an in-court identification would be tainted (AI23-25, AI28-29). The People further argued that, even if the viewing of the photograph had constituted an identification procedure, and even if the photograph had not been blurry, "the complaining witness would still have been able to reliably identify the defendant as 9 a result of her ample opportunity to view the defendant during the commission of the crime" (Al30). The People noted that Rison's testimony had demonstrated that the photograph "did not change her memory of the defendant's appearance," that it "did not do anything to help her identify the defendant," and that Rison had testified that she would be able to identify defendant in court "based on her own independent recognition of the defendant from when the crime was committed" (Al29-30). The People argued that the prosecutor's testimony was not necessary, because the effect of the photograph on Rison was the sole issue at the hearing. The People argued that the testimony of the complaining witness and the court's opportunity to see the photograph provided a sufficient basis for the court to rule on the issue at the hearing (Al30-3l). Defendant submitted papers arguing that the display of one photograph to Rison constituted an identification procedure and that a Wade hearing was necessary to determine if the procedure had been unduly suggestive (Al07, Al14-17). Defendant disputed that the display of the photograph constituted proper trial preparation, arguing that permissible trial preparation photographic displays involve either a "refresher" of a previous identification procedure, or the display of a photograph that a wi tness has already viewed, neither of which occurred in this case (Alll). Defendant further argued that the prosecutor was a 10 necessary witness to clarify what transpired at his meeting with Rison, and to aid the court in determining whether the meeting was permissible trial preparation or an identification procedure (Al12-14) . The Hearing Court's Decision In a written decision and order dated October 13, 2010, the court found that Rison's viewing of the photograph was trial preparation and not an identification procedure (A134-36). The court credited, as fact, Rison's account of the July 3, 2008 assaul t on the bus, and Rison's testimony that she called the police on September 10, 2008, to arrest at Kings County Hospital a woman whom Rison believed to be her assailant (A134-35). The court further credited Rison's testimony that she met with the prosecutor on January 5, 2010, and that he showed Rison a photograph that Rison just glanced at and that she described as "blurry" and "not clear" (A135). The court found that the showing of the photograph "was trial preparation and not an identification procedure as envisaged by CPL § 710.30" (A136). The court observed that "'[t]he People were permitted, if not obligated, to prepare with their witnesses for the instant hearings and upcoming trial, and it was permissible to use exhibits while doing so'" (A136) (citation omitted). The court noted that Rison's hearing testimony established that the viewing of the photograph took 11 place as part of trial preparation (A136). The court also found that in light of Rison's had previous identification of defendant at Kings County Hospital, her brief viewing of the photograph would not taint an in-court identification of defendant (A136). The Tria1 2 Defendant's trial commenced on October 13, 2010, over nine months after the prosecutor's display of defendant's prisoner movement slip photograph to Rison (A137). 2 Prior to the start of the trial, defense counsel complained that at the pretrial hearing (held before a different judge) she had not asked any questions relating to Rison's point-out of defendant to the police, or about any subsequent interaction between Rison and the police, because it had been counsel's understanding that the hearing was limited to the issue of whether the prosecutor's display of a photograph to Rison was an identification procedure warranting a Wade hearing. Defense counsel asserted that she would have asked more "thorough" questions about Rison's interaction with the police if she had thought that the court was going to deny a Wade hearing (A143-44). Prior to trial, the charges in the information were reduced on the People's motion to Attempted Assault in the Third Degree (P.L. §§ 110.00/120.00[1]) and Attempted Criminal Possession of a Weapon in the Fourth Degree (P.L. §§ 110.00/265.01[2J); the count charging Menacing in the Second Degree (P.L. § 120.14[lJ) was dismissed on the People's motion, and the charges of Menacing in the Third Degree (P.L. § 120.15), and Harassment in the Second Degree (P.L. § 240.26) were retained (A145-46). 12 The People's Case On July 3, 2008, at about 1:30 p.m., sixty-year-old KATHLEEN RISON, a horne health aide, was riding with her disabled daughter on a bus in Brooklyn. It was a sunny day, the bus was not crowded, and Rison and her daughter were seated in the rear of the bus (Rison: A152-54, A174). When the bus stopped near the intersection of Empire Boulevard and Utica Avenue, a woman who had been seated across the aisle from Rison got up and walked over to look out of the window behind Rison. The woman, whom Rison identified in court as defendant, stood on Rison's foot as she looked outside (Rison: A155-56, A170, A174-77). Defendant's heel was pressing on the upper part of Rison's right foot, and it was painful. Rison told defendant that defendant was on her foot, and Rison asked defendant to get off her foot. defendant Rison repeated her request three times before finally moved (Rison: A157, A171-72, A180-81) . Defendant then sat down in the seat across the aisle from Rison. Looking straight at defendant, Rison complained about defendant's failure to apologize. In response, defendant told Rison that she did not "feel like it" (Rison: A157-58, A180, A193) . Rison then chastised defendant, telling her that it paid "to be decent and nice." Nobody was standing between Rison and defendant, and Rison had a clear view of defendant as she spoke 13 to her (Rison: A157-60, A192-93, A226, A229-30). Rison observed that defendant had a dark complexion, and that she was wearing tight-fi tting clothing that included a green-and-whi te-striped shirt and green sweatpants (Rison: A160, A177-78, A193, A197- 98) . In response to Rison's reproach, defendant made a fist, got up, and began punching Rison in the face, nose, and head (Rison: A161, A230). Rison at first tried to protect herself by holding her handbag up, and then tried to get up. However, defendant was taller than Rison, and, by standing over Rison, defendant made it impossible for Rison to stand up. Rison was helpless as defendant continued to hit her. and her nose began bleeding. The attack caused Rison pain, Blows to her left eye caused Rison's vision in that eye to become blurry, and Rison thereafter began to feel dizzy and faint. Eventually, using her knees and feet, Rison was able to push defendant back (Rison: A161-63, A167-68, A182-86). Other passengers started screaming during the assault. When the bus stopped and the doors opened, defendant prepared to leave the bus. Rison took off one of her slipper-style shoes and raised it up, preparing to hit defendant with it. However, before Rison was able to strike, defendant removed from a wallet a thin knife with a blade approximately six inches long, pointed it at Rison, and warned, "[IJf you ever do it, I will stab you. 14 I will kill you" (Rison: A163-64). Defendant was within a foot or two of Rison at that time, and Rison was looking "straight in her face" (Rison: A163-65, A179, A227). Rison was terrified, and she immediately lowered her shoe (Rison: A165-66, A178-79). LARRY JOSEPH, the bus driver, saw part of the fight through a large mirror at the front of the bus that was designed to afford the driver a view of the entire bus (Joseph: A266-67, A270). Joseph saw defendant, whom he identified in court, standing up and throwing punches to the face of Rison, whom Joseph recognized as someone who frequently rode on his bus (Joseph: A2 7 0 - 7 4 , A2 8 6 - 8 7, A2 91 , A3 0 0 - 0 1) . Joseph had a clear view of both women's faces during the incident, and he took a "good look" at defendant's face (Joseph: A273-74, A289, A300, A306- 08) . Joseph noticed that defendant was black, that she was wearing neon-green colored spandex clothing, and that she appeared to be in her thirties and to weigh about 165 pounds. Joseph heard passengers screaming, and he saw people in the rear of the bus moving forward after someone yelled that there was a knife. Frightened passengers were yelling at Joseph to open the doors (Joseph: A272-74, A289-93). Joseph, who was not permitted to stop the bus outside of a designated bus stop, watched the road as he drove to the bus stop at Utica Avenue and Empire Boulevard. When he reached that stop, some passengers did not want him to let defendant off the 15 bus. However, regulations required him to open the doors to allow passengers to disembark at a bus stop. At the stop, defendant walked to the front of the bus (Joseph: A27 4, A2 92, A2 95- 9 6 , A2 9 9 - 3 0 0) . She had put on sunglasses, and she stood just inches from Joseph as she used his mirror to ~fix[J herself" before leaving the bus (Joseph: A275-77, A299-300). Other passengers were running off the bus, and Joseph watched defendant, ~in shock" at how she stood there, calmly fixing her hair (Joseph: A276). Joseph called the police, who arrived about four minutes later (Joseph: A277-79, A294). Rison described her assailant to Police Officer LOUIS SOLAND as a dark-complexioned black woman who was a little bit taller than Rison, who looked younger than Rison, and who was wearing green and white clothing. Rison also gave a general description of her assailant's build and of her assailant's purse (Rison: A189-91, A193-98; Soland: A248-49). Joseph also described Rison's assailant to the police (Joseph: A278, A295). Officer Soland took Rison on a brief area canvass, which was unsuccessful, and Officer Soland thereafter brought Rison back to the bus stop where he had found her (Soland: A238) . An ambulance that had been summoned then took Rison to Kings county Hospital. Rison's eye had become swollen, and her vision had become blurry by that time. Rison was given a CAT scan, and 16 she was thereafter provided with medication and an ice pack for her bruises (Rison: A165-67, A170, A186, A188-91, A194-98; Soland: A235-39, A247-51; Joseph: A277-78, A293-95, A303-05).3 About two months later, on September 10, 2008, Rison went to the pharmacy at Kings County Hospital to fill a prescription. At about 10: 00 a. m., while Rison was waiting for service, she spoke with a man who complained about his long wait for service at the hospital. That man pointed out a woman standing on a line, who, he said, had also been at the hospital since the night before. The woman he pointed out was defendant (Rison: A168, A199-202). Rison immediately recognized defendant, with complete certainty, as the woman who had attacked her on the bus (Rison: A169, A223). After observing defendant, Rison went to a nearby store to buy a calling card so that she could call the police. Defendant was still at the hospital when Rison returned about five minutes later (Rison: A168-69, A199-203, A213-15). When defendant thereafter entered an elevator, Rison followed her (Rison: A202-03, A223). There were others in the elevator, and Rison watched defendant's face as they rode to the sixth floor, where defendant got off (Rison: A223). 3 Rison's hospital records were admitted (A318-20) . At the time of trial, Rison still pain in her head and experienced blurry vision the attack (Rison: A166-67). 17 Rison followed into evidence sometimes felt as a result of defendant and saw her sit down in an area on the sixth floor (Rison: A224). When Rison received a telephone call from the police, asking her to meet them on the first floor, she returned there. Rison then took the officers up to the sixth floor, where Rison pointed out defendant to the officers as the woman who had assaulted Rison and threatened her with a knife on July 3, 2008 (Rison: A202-03, A223-26; Soland: A239-42). Defendant was arrested (Soland: A2 41) . The officers asked Rison to bring her daughter to the precinct, and Rison left to do so. Rison and her daughter arrived at the precinct just as defendant was about to be removed from a patrol car (Rison: A207, A215-16). Officer Soland subsequently spoke to Rison at the precinct (Rison: A169, A204-07, A215-20; Soland: A241-46). Defendant's photograph was taken while she was at the precinct (Soland: A251). The Defense Case On July 3, 2008, Police Officer MANUEL MEDINA responded to a complaint about an assault on a bus. At the scene, he saw an older black woman with a bloody nose who appeared to require medical assistance. That woman described her assailant's race and clothing, which Officer Medina subsequently entered on a complaint report. height, or weight. (Medina: A327-35). She did not describe her assailant's age, An immediate area canvass was unsuccessful 18 Defendant's mother, CAROL WALTER, who was an assistant at a daycare facility, testified that she worked on July 3, 2008, and that she was released early that day, at about 1: 00 p.m., for the holiday. When she arrived home five to ten minutes later, she found that defendant had failed to dry some comforters that Wal ter had asked her to dry. Wal ter testified that she and defendant thereafter walked with the comforters to a laundromat to use the dryers. They left home at about 1:20 p.m., and while they were waiting for the comforters to dry, Walter and defendant discussed a barbecue that defendant was going to attend that afternoon. Defendant was also texting on her cell phone during that time. After the comforters were dry, at about 1:45 p.m., Walter and defendant walked home. Defendant then changed for the barbecue and left home with a friend at about 2:15 p.m. (Walter: A353-59, A362-69, A388-89, A391-93). During cross-examination, Walter agreed that she loved her daughter, that her daughter's lawyer had told her to appear as a witness, and that she had discussed the case with her daughter's prior attorney as well. Walter also admitted that in her conversation with defendant's attorney, she had never said that defendant was with her on July 3. that she was defendant's mother. Walter had simply confirmed Walter acknowledged that defendant had called her when defendant was arrested, and had told Walter that she was arrested for an assault that took place 19 on July 3, but Walter never told the police or the District Attorney's Office before trial that defendant was with her on July 3 (Walter: A361, A373-81, A384-87, A390, A395-96, A400-02). PHILLIP PARK, a retail account manager for AT&T, testified, based on company documents, including billing records for defendant's telephone, that there was a three-minute telephone call made or received at 1:24 p.m. on July 3, 2008, and a two- minute call made or received at 1:33 p.m. on defendant's line. Three text messages were sent at 1:21 p.m., 1:22 p.m., and 1:23 p.m., and two text messages were received between 1:15 p.m. and 1:45 p.m. that day. The voicemail records were not one hundred percent accurate, and they did not indicate whether defendant or someone other than defendant was using the telephone when the calls were made (Park: A404-11, A417-22). Defendant, KAITY MARSHALL, testified that on July 3, 2008, she was pregnant and spent the day at home with her younger brother and her eight-year-old son. When defendant's mother arrived home at about 1:10 p.m., she and defendant went to the laundromat to dry some comforters that defendant had washed at home. They arrived at the laundromat at about 1:20 p.m. and it took about one-half hour for the comforters to dry. While defendant was waiting, she was on her telephone, making calls or texting, instant messaging, and accessing the internet. After the comforters were dry, defendant and her mother came home, and 20 defendant showered, changed clothing, and styled her hair before going out to a barbecue with some friends. Defendant left home at about 2:30 p.m. Defendant denied being on the B12 bus at any time that afternoon, and she testified that she weighed 205 pounds that summer (Marshall: A440-50, A454, A457, A486-87, A489) . Defendant testified that, on September 10, 2008, after taking her son to school, she had gone to Kings County Hospital regarding her pregnancy and she was immediately directed to go to the clinic on the sixth floor. After registering there, defendant stepped out of the immediate area to make a telephone call. At that time, she was confronted by police officers who asked her if she knew the woman who was standing with them, who defendant later learned was Kathleen Rison. Defendant denied knowing Rison, but Rison told the officers that she was sure that defendant was "the lady," and defendant was arrested and taken downstairs. Defendant testified that the officers continued to talk to Rison, that defendant heard Rison say that she "wasn't sure" that it was she, and that she wanted to call her daughter to verify that defendant was the right person. Defendant was then driven to the precinct (Marshall: A431-36, A459-61) . Defendant testified that when she arrived at the precinct, she saw Rison with a younger woman, who defendant assumed was 21 Rison's daughter. Defendant further testified that, as she was walked past Rison and the younger woman, defendant heard the younger woman say, "Mom, that's not her." According to defendant, after a delay of several minutes, she heard police officers saying that "they" were going to go through with saying "that's her." Defendant was then booked and photographed. Defendant called her mother from the precinct, and defendant left the precinct a few hours later (Marshall: A437-40, A465- 67) . Despite telephone records showing text messages from defendant's cell phone to her mother's telephone number at 1:22 p.m. and 1:23 p.m. on July 3, 2008, defendant insisted that she was with her mother at the laundromat at that time, and not on the B12 bus (Marshall: A482-84). The People's Rebuttal Case Officer Soland and his partner, Officer PABLO RIVERA, testified that they went to Kings County Hospital on September 10, 2008, and that they arrested defendant after Kathleen Rison told them that she was one hundred percent positive that defendant was the woman who had previously assaulted her on a bus (Soland: A503-05; Rivera: A525). Rison was never unsure of her identification of defendant, and she did not discuss her identification of defendant with the officers in the parking lot. The officers drove defendant to the precinct 22 in a patrol car. Had Rison been unsure of her identification, Officer Soland would not have arrested defendant. Other officers transported Rison to the precinct (Soland: A502-05, A512-14; Rivera: A524-27, A531-33). Officer Soland took pedigree information from defendant at the precinct, and he personally observed that defendant appeared to weigh about 165 pounds. Defendant was offered a telephone call, but she refused the offer, and Officers Soland and Rivera did not see her make any telephone calls (Soland: A505-07, A509- 16, A519-20; Rivera: A529). The Verdict and Sentence On December 1, 2010, the court, as the trier of fact, convicted defendant of Attempted Assault in the Third Degree (P.L. §§ 110.00/120.00[1]), Attempted Criminal Possession of a Weapon in the Fourth Degree (P.L. §§ 110.00/265.01[2]), Menacing in the Third Degree (P.L. § 120.15), and Harassment in the Second Degree (P.L. § 240.26[1]) (A570-71). On February 24, 2011, the court sentenced defendant to seven days of community service and completion of an anger management program (A576-77). 23 The Appeal to the Appellate Term Defendant appealed from the judgment of conviction to the Term, Second, Eleventh, and Thirteenth Judicial Appellate Districts. On appeal to the Appellate Term, defendant asserted, among other claims, that the court at the pretrial hearing wrongly decided that the prosecutor's display of a single photograph of defendant to Kathleen Rison was proper trial preparation and not an identification procedure warranting a full Wade hearing. Defendant also argued that the hearing court erred in refusing to allow defendant to call the prosecutor as a witness at the hearing. In a decision and order dated February 7, 2014, the Appellate Term unanimously affirmed defendant's judgment of conviction, concluding, in pertinent part, that the hearing court correctly determined that the prosecutor's display of a photograph to Rison consti tuted trial preparation (A3-A6). People v. Marshall, No. 2011-999 K CR, 2014 N.Y. Misc. LEXIS 721, at ***1-***2 (App. Term 2d, 11th & 13th Jud. Dists. Feb. 7, 2014). The Appellate Term noted that the prosecutor had just been assigned to the case the day before he met with Rison, and that Rison failed to identify the person in the photograph, which she described as blurry and not clear (A4). 2014 N.Y. Misc. LEXIS 721, at ***2. The Appellate Term further concluded that even if Rison had identified the person depicted in the photograph as defendant, because Rison 24 had previously identified defendant upon defendant ' s arrest , the photographic identification would not have tainted her in-court identification of defendant (A4) . 2014 N. Y. Misc. LEXIS 721, at ***2. In addition, the Appellate Term held that defendant's contention that the court should have perrni tted her to call the prosecutor as a witness at the hearing was meri tless (A4 - A5) . 2014 N. Y. Misc . LEXIS 721, at ***2-***3 . By certificate dated July 21 , 2014 , defendant was granted leave to appeal to this Court (AI) . People v . Marshall , 23 N. Y. 3d 1039 (2014) (Pigott, J.). 25 SUMMARY OF ARGUMENT Following a pretrial hearing, the Criminal Court correctly determined, pursuant to People v. Herner, 85 N.Y.2d 877 (1995), that no identification procedure took place during a meeting between the prosecutor and the complainant at which the prosecutor briefly displayed the prisoner movement slip photograph taken of defendant on the day of her arrest. The hearing court's conclusion was fully supported by the complainant's hearing testimony, which established that she was not asked to make an identification of the photograph, that she was not told that it was a photograph of the woman whom she had identified to the police as her assailant, that she just glanced at the photograph, that the photograph was blurry, and that she did not believe it to be a photograph of the woman whom she had identified to the police as her assailant. Contrary to defendant's contention, no further hearing was necessary regarding the alleged suggestiveness of the display of the photograph, because the complainant did not identify defendant from the photograph, because the display was not conducted for the purpose of establishing the identity of the person who had assaulted the complainant, and because the evidence at the hearing showed that the complainant had an independent source for her in- court identification. The hearing record fully supports the determination of both the hearing court and the Appellate Term 26 that, in light of the complainant's previous identification of defendant at the time of defendant's arrest, the viewing of the photograph would not taint an in-court identification by the complainant. Furthermore, the hearing court reasonably exercised its discretion in denying defendant's request to call the prosecutor as a witness at the pretrial hearing, because defendant's request was not supported by a bona fide factual predicate demonstrating that the prosecutor had material, noncumulative evidence to offer regarding the effect of the display of the photograph upon the complainant. Finally, any error in the hearing court's rulings was harmless, because there is no reason to believe that a further hearing on the issue of whether the photographic display was suggestive, or that testimony from the prosecutor, would have resulted in suppression of the complainant's in-court identification of defendant; and because, even if the complainant's in-court identification had been suppressed, there was overwhelming evidence of defendant's guilt apart from the complainant's in-court identification. Therefore, for that reason, as well, defendant's claims should be rejected. Accordingly, for these reasons, the order of the Appellate Term and the judgment of conviction should be affirmed. 27 POINT I THE PROSECUTOR'S BRIEF DISPLAY OF A PHOTOGRAPH OF DEFENDANT TO THE COMPLAINANT DURING TRIAL PREPARATION WAS NOT AN IDENTIFICATION PROCEDURE. IN ANY EVENT, THE DISPLAY OF DEFENDANT'S PHOTOGRAPH DID NOT TAINT THE COMPLAINANT'S IN-COURT IDENTIFICATION OF DEFENDANT. FURTHERMORE, ANY ERROR IN ADMITTING THAT IN-COURT IDENTIFICATION WAS HARMLESS. In People v. Herner, 85 N. Y.2d 877 (1995), this Court held that the display of the defendant's photograph to the complainant during a trial preparation session with the prosecutor was not an identification procedure warranting notice pursuant to Criminal Procedure Law § 710.30. Here, as in Herner, following the prosecutor's notification that he had displayed a photograph to the complainant during trial preparation, the court held a hearing at which the complainant testified, and the court determined that the display of the photograph constituted permissible trial preparation and was not an identification procedure. Contrary to defendant's claim, no further hearing was required regarding the question of whether the prosecutor's display of defendant's photograph to the complainant constituted a suggestive identification procedure, because the complainant did not identify defendant from the photograph, because the display of the photograph was not an identification procedure, and because the showing of the photograph did not taint the complainant's in- court identification of defendant. Moreover, any error in the 28 hearing court's ruling was harmless, in light of the overwhelming evidence of defendant's guilt. A. The Display of the Photograph to the Complainant Was Not an Identification Procedure, Because the Complainant Did Not Identify Defendant from the Photograph. Prior to trial, the prosecutor notified the court and the defense that, during a trial preparation meeting at his office, he had displayed defendant's prisoner movement slip photograph, taken on the date of defendant's arrest, to the complainant. An evidentiary hearing was thereafter held at which the complainant, Kathleen Rison, testified. Rison recalled that the prosecutor had shown her a photograph during their meeting, and that he had asked her if she knew the photograph (Rison: A88- 89) . Rison recalled that the photograph was blurry, that she barely glanced at it, that she did not hold it in her hands, that she did not know what it was, and that she only told the prosecutor that it was blurry (Rison: A89-91). Rison did not recall any further discussion with the prosecutor about the photograph and did not know what happened to the photograph after she glanced at it (Rison: A89-91). Rison was asked on direct examination if, during her meeting with the prosecutor, she had seen a picture of the person who was arrested on September 10, 2008, and Rison replied, "It was not" (Rison: A84). Rison further testified that the displayed photograph did not change her mind about her memory of the person 29 who attacked her (Rison: A84). During cross-examination, Rison again testified that she never saw a photograph of the person who was arrested on September 10, 2008 (Rison: A92). This testimony, found to be credible by the hearing court, fully supported the determinations of the hearing court and the Appellate Term that no identification procedure had taken place (A4, A135-36). Rison's failure to recognize the photograph as a photograph of her assailant was analogous to the failure of a wi tness to identify a suspect at a lineup or in a photographic array, in which case no Criminal Procedure Law § 710.30 notice or Wade hearing is required. See People v . Trammel, 84 N.Y.2d 584, 587-88 (1994) (witness's failure to identify defendant from photographic arrays did not mandate notice under C.P.L. § 710.30, because a previous identification is the "the precise and plain triggering predicate for the notification procedure [of C. P. L. § 710.30] to be operative). In Trammel, this Court concluded that "[t]o treat nonidentification results, under circumstances such as occurred here, as mandating 710.30 notifications would inappropriately and needlessly extend the reach and purport of the statute." Id. at 588; see also People v. Thomas, 60 A.D.3d 1341, 1342 (4th Dep't 2009) (in-court identification of defendant was properly allowed despite lack of C.P.L. § 710.30 notice or hearing, where "the witness in question was unable to identify defendant at the pretrial identification procedure"); People v. 30 Pagan, 248 A.D.2d 325 (1st Dep't 1998) (showing of photo array prior to defendant's arrest did not trigger notice requirement since witness failed to identify defendant from photo array or at any time prior to trial), aff'd on other grounds, 93 N. Y . 2d 891 (1999); People v. Holton, 225 A.D.2d 1021, 1022 (4th Dep't 1996) (no C.P.L. § 710.30 notice required, where victim failed to identify defendant at showup); People v. Muhammad, 217 A.D.2d 773 (3d Dep't 1995) ("We are at a loss as to how the viewing of a blurred photo, which the victim was unable to identify, could adversely impact upon the victim' s ability to make an in-court identification"); People v. Trottie, 167 A.D.2d 438 (2d Dep't 1990) (no C.P.L. § 710.30 notice required, where witness had previously failed to identify defendant from photo array); People v. Monroig, 111 A.D.2d 935, 935 (2d Dep't 1985) (no C.P.L. § 710.30 notice required, where witness who identified defendant at trial had previously failed to identify defendant from group of photographs) . Thus, the display of defendant's prisoner movement slip photograph, and Rison's failure to identify defendant from that photograph, were potential matters for cross-examination and went to the weight of Rison's identification testimony, not its admissibility. See People v. Gee, 99 N.Y.2d 158, 164 n.6 (2002) (although defendant did not have right to call identifying witness at Wade hearing, defendant was free to "pursue the reliability of 31 the clerk's identification of defendant by cross-examination and other means"); In re Dashawn R., 120 A.D.3d 1250, 1251 (2d Dep't 2014) (victim's inability to identify defendant in photograph prior to trial "goes to the weight of her in-court identification, and not to its admissibility"); Trottie, 167 A. D. 2d at 438 ("We note that the defendant had the opportunity, on cross-examination, to explore the witness's failure to identify the defendant from a photographic array"); see also People v. Young, 20 A.D.3d 893, 894 (4th Dep't 2005) (rejecting contention that verdict was against weight of evidence, where victim who identified defendant in court was unable to identify defendant in photo array one month after the crimes; jury was able to assess victim's difficulty with respect to photo array), aff'd on other grounds, 7 N. Y. 3d 40 (2006) . Nor was there any Brady violation here, as the prosecutor informed the court and defense counsel about the display of the photograph to Rison, and the testimony at the pretrial hearing established that Rison did not identify it as a photograph of her assailant. Thus, defendant had the opportunity to use this information effectively at trial. See People v. Clarke, 5 A.D.3d (information that nontestifying 807, 808-09 (3d Dep't 2004) wi tness who provided description for composite sketch was later unable to identify defendant in photo array was turned over to defendant in time to use it at trial); People v. Paden, 158 A.D.2d 32 554, 555 (2d Dep't 1990) (to extent that witness's failure to identify defendant's photograph constituted Brady material, People promptly advised defense of the failure to identify, and defendant used information on cross-examination); see also People v. Whitehead, 84 A.D.3d 1128, 1130 (2d Dep't 2011) (recall of witness for further cross-examination cured potential prejudice after prosecu+tor failed to disclose that witness had failed to identify defendant from photograph shown by detective) . Because Rison did not identify defendant from the prisoner movement slip photograph that the prosecutor showed to her, the conclusions of the hearing court and of the Appellate Term that no identification procedure took place were fully supported by the record, and this case does not present this Court with any necessity to reexamine its decision in Herner. B. Even If the Complainant Had Recognized Defendant in the Photograph, the Prosecutor's Display of the Photograph During Trial Preparation Was Not an Identification Procedure. In People v. Herner, 85 N.Y.2d 877 (1995), this Court held that the prosecutor's display to the complainant, during preparation for trial, of a photograph of the lineup at which the complainant had previously identified the defendant, and about which the complainant was going to be questioned at trial, was not an identification procedure that required notice pursuant to C.P.L. § 710.30. Id. at 879. In Herner, upon being shown the 33 lineup photograph, the complainant indicated that she remembered the lineup. Id. at 878. In the instant case, as well, even if Rison had identified the prisoner movement slip photograph as a photograph of the woman whom she had previously identified to the police as her assailant, the prosecutor's display of the photograph constituted permissible trial preparation and was not an identification procedure. Under Herner, a Wade hearing is not necessarily required with respect to a prosecutor's display of a photograph of the defendant, during preparation for trial, to a witness who has previously identified the defendant, because such a photographic display is not being conducted "for the purpose of establishing the identity of the criminal actor.H See People v. Gissendanner, 48 N.Y.2d 543, 552 (1979). As in Herner, the prosecutor here was preparing the witness for trial, not conducting a procedure to "establish [J the identity of the criminal actor.H See Gissendanner, 48 N. Y. 2d at 552. As the prosecutor explained to the court (A36-37, A49), he was trying to understand Rison's descriptions of her assailant's hairstyle when he displayed defendant's prisoner movement slip photograph to Rison. Like the lineup photograph in Herner, the photograph on the prisoner movement slip had been taken on the same date as the date of the wi tness' s corporeal identification of the defendant, which, in this case, occurred when Rison pointed out defendant to the police 34 at the hospital. While the police-arranged lineup in Herner had been the subj ect of a Wade hearing, Rison's identification of defendant at the hospital was not the result of any police- arranged procedure, and it was not the product of suggestion because Rison spontaneously recognized defendant in a place where no police were present and because she had to summon the police to arrest defendant. See People v. Clark, 85 N.Y.2d 886, 888 (1995). The photograph that the prosecutor displayed was taken on the same date as Rison's spontaneous point-out of defendant and merely captured an image of defendant as she appeared on that date, just as the lineup photograph in Herner captured the defendant's image as he appeared when the complainant made her corporeal identification of the defendant in that case. Accordingly, even if Rison had recognized the photograph as depicting the person whom she had previously identified as her assailant, the display of that photograph would not have warranted a Wade hearing. See People v. Hopkins, 284 A.D.2d 223 (1st Dep't 2001) (witness's viewing of defendant's and codefendant's arrest photographs with prosecutor prior to witness's testimony, for purpose of reviewing their respective roles in the crime, was proper trial preparation); People v. Lewis, 278 A.D.2d 819 (4th Dep't 2000) (viewing of defendant's photograph by arresting officer approximately ten days before trial was proper trial preparation, not identification procedure, and in-court 35 identification by officer was properly permitted); People v. Jerold, 278 A.D.2d 804 (4th Dep't 2000) (prosecutor's display of previously-viewed photographic array and another photograph of defendant to witness prior to trial testimony was proper trial preparation); People v. Morales, 248 A.D.2d 173 (1st Dep't 1998) (officers' viewing of defendant's arrest photograph prior to trial constituted proper trial preparation that did not taint subsequent in-court identifications, given that officers had already identified defendant at time of arrest); see also Gee, 99 N.Y.2d at 164 (rejecting claim that witness's identification was "tainted" by viewing videotape of robbery); People v. Jackson, 43 A.D.3d 488 (3d Dep't 2007) (confidential informant's review of recordings of conversations with defendant constituted trial preparation and not identification procedures) . A federal court of appeals has recognized that a similar trial preparation procedure does not constitute an identification procedure. In United States v. Thompson, 27 F.3d 671 (D.C. Cir. 1994), prior to trial, an undercover officer was shown a photograph of the defendant, whom she had previously identified during a drive-by viewing shortly after her drug purchase from the defendant. Id. at 673-74. The District of Columbia Circuit Court of Appeals observed: 36 It is quite a stretch to portray what happened during pre-trial preparation as an identification procedure. [The undercover officer], in fact, had made a drive-by identification of [the defendant] minutes after he had been arrested, well before the allegedly suggestive photo display. Under fairly similar circumstances, we have found 'nothing improper' in later showing such a witness a photograph to refresh her recollection. To be sure, this technique may well make the witness seem more confident when she identifies the defendant in court. But the same can be said of every technique used to refresh a witness's recollection during pre-trial preparations. Id. at 673 (emphasis in original; citation omitted). The District of Columbia Circuit concluded that the witness's "sighting of the photo while preparing for her testimony carried no significant risk of causing any misidentification," that "the key identification was the drive-by," and that "exposure to [the defendant's] arrest photo in trial preparation could have had only the most remote effect on the credibility of [the undercover officer's] testimony about the events leading up to the drive-by." Id. at 673-74; see also United States v. Marshall, 511 F.2d 1308, 1311 (D.C. Cir. 1975) (there was "nothing improper" in showing victim, shortly before her in-court identification of defendant, picture of defendant that she had previously selected) . Citing articles analyzing psychological research studies, defendant suggests that this Court should abandon Herner and rule that every pre-trial display by a prosecutor to a witness of a defendant's photograph warrants Criminal Procedure Law § 710.30 notice and a full Wade hearing (Defendant's Brief at 28-29, 35- 37 43) . In the al ternati ve, defendant argues that, even if Herner retains vitality, the photographic display here, where the witness was shown a single photograph of defendant that she had never seen before, was more suggestive than the display in Herner, where the witness was shown a photograph that depicted the lineup at which the witness had previously identified the defendant, and defendant argues that the hearing court erred in concluding that the display was proper trial preparation that did not necessitate a Wade hearing (Defendant's Brief at 29-30). To the extent that defendant now argues that the courts below erred in concluding that the complainant's in-court identification was not tainted, because psychological phenomena such as "confirming post-event information" rendered the prosecutor's display suggestive (Defendant's Brief at 29-30, 35-41), his claim is unpreserved for appellate review. See C.P.L. § 470.05(2). Defendant never argued to the hearing court that such phenomena constituted a reason to find that the photographic display in this case was suggestive, and defendant never sought to introduce expert testimony at the hearing or the trial to support such an argument. Defendant is thus unlike the defendants in cases such as People v. Santiago, 17 N.Y.3d 661 (2011), and People v. LeGrand, 8 N.Y.3d 449 (2007), who made offers of proof and sought to have admitted in the lower court expert scientific evidence concerning eyewitness identification, thereby creating a record 38 and preserving their arguments for appeal. In light of the lack of preservation of such arguments and the absence of an appropriate record on which to evaluate such arguments, defendant's arguments concerning these phenomena are beyond the review of this Court. See N.Y. Const. art. VI, § 3(a). In any event, defendant's claims are meritless. With respect to the instant case, as discussed previously (see supra at 30-31), Rison did not recognize the photograph that was displayed to her as a photograph of defendant, and her failure to recognize that photograph as a photograph of defendant certainly demonstrated that, although a single photograph of defendant was displayed, the display did not have any suggestive effect. Accordingly, the record does not support defendant's arguments that the display of the photograph in this case was more suggestive than the display of the photograph in Herner and that the hearing court erred in failing to order a Wade hearing. Defendant's argument, based upon the psychological studies he cites, that the display of a defendant's image to an eyewitness "as the image of the perpetrator" might cause that witness to subconsciously revise his or her memory of the underlying incident and/or to exaggerate his or her original opportunity to view the assailant (Defendant's Brief at 36) is simply not applicable to this case, because Rison did not perceive the photograph to be an "image of the perpetrator." 39 Moreover, the record does not support defendant's assertion that, by producing defendant's photograph, the prosecutor "necessarily conveyed his own unequivocal view that [defendant] was the culpable party" (Defendant's Brief at 41). Obviously, Rison drew no such conclusion, testifying at the hearing that she never saw a photograph of the person for whom she had summoned the police in September of 2008 (Rison: A84, A92). While the prosecutor might have assumed that Rison would recognize the photograph when he displayed it, he did not pursue the matter after Rison glanced at the photograph and told him that it was blurry (Rison: A91-92). Rison did not identify defendant in the photograph, and she was never asked anything beyond whether she "knew" the photograph (Rison: A84, A91) . Because the circumstances of this case do not support a determination that the hearing court and the Appellate Term erred in concluding that the display was permissible trial preparation that resulted in no taint, defendant's arguments should be rejected. Even if this Court accepts defendant's invitation to reexamine Herner, this Court should reaffirm Herner's conclusion that a prosecutor's pretrial display of the defendant's photograph, during trial preparation, to a witness who has previously identified the defendant is not an identification procedure. Defendant argues that Herner should be reconsidered based upon psychological studies challenging the reliability of 40 eyewitness identifications where witnesses may be affected by such factors as mugshot exposure prior to viewing a lineup, or by receiving confirming feedback after making an identification from a lineup by a lineup administrator who knew which participant in the lineup was the target. However, virtually all of the research and cases cited by defendant involve initial identification procedures, which Herner, by its terms, does not address. Moreover, Herner is fair to defendants while avoiding needless or duplicative Wade hearings and permitting necessary witness preparation. Herner does not leave it to a prosecutor to determine if a photographic display during trial preparation needs to be the subj ect of a Wade hearing. Rather, Herner allows the court to make that determination at a hearing. See Herner, 85 N.Y.2d at 878-79. A prosecutor displaying a defendant's photograph to a witness as part of trial preparation runs the risk that the court will find that the display constituted an identification procedure, and that, if the procedure was unduly suggestive, the witness's in-court identification will be suppressed unless an independent source for the identification is established. Herner does not diminish any obligation of the prosecutor to disclose a photographic display. Herner allows courts to determine whether the photographic display was an identification procedure and, if so, whether any identification by the witness 41 should be suppressed. As such, Herner does not offend due process standards for safeguarding a defendant's right to a fair trial. While defendant argues that the psychological research upon which he relies suggests that "viewing a defendant's image in preparation for trial can affect the reliability of a subsequent -- here an in-court identification" (Defendant's Brief at 36), Herner applies only to cases, like this one, in which the witness who is shown a photograph in preparation for trial has previously identified the defendant, and it is the circumstances of that initial identification not the circumstances of the later photographic display during trial preparation -- that are crucial to evaluating the reliability of the witness's identification of the defendant. Moreover, defendants are not without protection against prejudice from allegedly suggestive post-identification viewings. First, Herner does not preclude a defendant from arguing, and does not preclude a court from finding, that, in a particular case, the display of the defendant's photograph to a witness during trial preparation presents a risk of suggestiveness and therefore requires evaluation at a Wade hearing. In addition, a safeguard against a potential prejudice from such viewings is cross-examination at trial, including cross- examination about a witness's recent viewings of photographs, about any remarks made to the witness about the photographs, and 42 about whether the viewing or related conversations affected the witness's recollections of the perpetrator's appearance. See People v. Chipp, 75 N. Y. 2d 327, 338-39 ("Any improprieties in pretrial identification procedures can be investigated under the time-honored process of cross-examination. Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification -- including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi" [citations and internal quotation marks omitted]), cert. denied, 498 U.S. 333 (1990); see also Simmons v. United States, 390 U.S. 377, 384 (1968) (danger that witness's viewing of defendant's photograph may result in conviction based on misidentification "may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error"); United States v . Garcia, 936 F.2d 648 (2d Cir. 1991) (government conceded that display of defendant's photograph to two witnesses should have been revealed prior to trial, but defendant had ample opportunity to cross-examine one witness about it at trial, and other witness's identification of defendant was never in doubt); cf. People v. Adams, 53 N.Y.2d 241, 251 n.2 (1981) (although People may not introduce evidence of identification resulting from suggestive identification procedure, 43 defendant might choose to do so, in order "to demonstrate the potential impact on a subsequent or in-court identification"). While the measures recommended in the articles cited by defendant, such as double-blind lineups, statements that the perpetrator might not be present in the lineup, avoidance of feedback after a lineup, avoidance of mugshot exposure before a lineup, as well as enhanced jury charges on eyewitness identification, may be of interest with regard to improving identification procedures, those suggestions do not undermine the recognition in Herner and its progeny that not every display of a photograph by a prosecutor constitutes an identification procedure warranting a Wade hearing, particularly where the witness to whom the photograph was displayed previously identified the defendant, and any alleged suggestiveness of that previous identification can, where appropriate, itself be the subject of a Wade hearing. C. The Hearing Testimony Established that the Complainant Had an Independent Source for Her In-Court Identification. In any event, regardless of whether the display of defendant's photograph to Rison should have been the subject of a Wade hearing, the hearing evidence showed, by clear and convincing evidence, that Rison had an independent source for an in-court identification. Prior to the hearing, the People argued that the complainant "has an independent basis for any prospective in-court identification" (A50). In accord with this Court's "caution" in 44 Peop le v. Wilson, 5 N.Y.3d 778, 780 (2005), and People v. Burts, 78 N.Y.2d 20, 25 (1991), that whenever a pretrial identification is challenged, it is good practice for the People to come forward wi th independent source evidence, the People elicited extensive evidence at the pretrial hearing of the complainant's independent source for identifying defendant (Rison: A65-75). The People also argued in their post-hearing papers that Rison would be able to make an identification "based on her own independent recognition of the defendant from when the crime was committed" (A12 9) . The hearing court made detailed findings of fact concerning Rison's viewing of and interactions with her assailant on the date of the crime, finding that "the encounter lasted between five to ten minutes, and within a range of approximately two feet" (A134-35). Al though the hearing court did not use the term "independent source," its conclusion that, in light of Rison's prior identification of defendant at the hospital, Rison's "brief viewing of the blurry photograph" would not "taint" an in-court identification by her (A136), constituted a finding that Rison had a source for her in-court identification that was independent of the photographic display. The Appellate Term, in addition to concluding that the display of defendant's photograph was permissible trial preparation, noted that Rison had been "unable to identify the person depicted in the photograph as defendant" (A4), but added 45 that ~even if" Rison had identified defendant from the photograph, ~the photographic identification would not have tainted her in- court identification of defendant" because Rison had previously identified defendant at the time of defendant's arrest (A4). Rison's previous identification of defendant at the time of defendant's arrest was spontaneous, not police-arranged, and based upon her independent recollection of defendant from the incident itself (Rison: A75-77, A82-83). Thus, the Appellate Term's alternate conclusion that even if Rison had identified defendant in the photograph, that identification would not have tainted her in-court identification likewise constituted an implicit finding of independent source, based on the hearing evidence, that should be upheld. See C.P.L. § 470.15(1); see also Chipp, 75 N.Y.2d at 336 (~implicit finding" of hearing court that lineup was not suggestive was not erroneous as a matter of law); cf. Wilson, 5 N.Y.3d at 779 (Appellate Division could not make de novo finding of independent source where record did not support such finding). The question of whether a witness had a source for an in- court identification that was independent of an allegedly suggesti ve pretrial identification procedure is a mixed question of law and fact. Consequently, when, as in this case, there is support in the record for the implicit finding of the Appellate Term that the witness had an independent source, that finding is 46 beyond the review of this Court. See N.Y. Const. art. VI, § 3(a); People v. Young, 7 N.Y.3d 40, 44 (2006). The evidence at the hearing fully supports the determination that Rison had a source for her identification of defendant that was independent of the photographic display. At the hearing, Rison described her encounter with defendant, which took place over the course of five to ten minutes during the daytime on a well-lit bus (Rison: A67, A73). During that time, Rison observed defendant when defendant stood on her foot, Rison made remarks to defendant about defendant's lack of manners, Rison was repeatedly struck by defendant, and, after the assault had concluded, defendant threatened Rison with a knife (Rison: A66-75). Rison's testimony established that all of her contacts with defendant over the course of those five to ten minutes took place when Rison and defendant were wi thin a few feet of each other at the rear of a city bus, and Rison testified that she had taken a "good look at her face [so] that [i] f I see her again I sure would know her" (Rison: A74-75). Thus, the hearing record supported a finding by clear and convincing evidence that Rison had an independent source for her identification of defendant. See Perry v. New Hampshire, 132 S. Ct. 716, 725 n.5 (2012); Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. Biggers, 409 U.S. 188, 199-200 (1972) (all noting that factors to be considered in evaluating witness's ability to 47 make a reliable identification include witness's opportunity to view criminal at time of crime, witness's degree of attention, accuracy of witness's prior description of criminal, level of certainty demonstrated at confrontation, and time between crime and confrontation); People v. Malloy, 55 N.Y.2d 296, 300 (inquiry into independent source is factual one, involving "totality of circumstances"), cert. denied, 459 u.s. 847 (1982). Moreover, defendant had notice of the independent source issue and an opportunity at the hearing to challenge Rison's identification as lacking an independent source. hearing was referred to as a "Herner" hearing While the (A58, A60), defendant was aware of, and did not object to, the elicitation by the People of extensive evidence relating to the witness's independent source (A65-73). Defendant also elicited testimony relevant to the independent source issue. Following the People's case, the hearing court stated that the witness's "original opportunity to view" the person who attacked her was relevant to its determination of whether the display of the photograph was an identification procedure, and the court invited defense counsel to explore whether, at any time during the incident on the bus, Rison's ability to observe became impaired (A96). Defense counsel thus had every opportunity to cross-examine Rison about her viewing of her assailant on the bus, and counsel was on notice that the hearing court considered the question of an 48 independent source for the complainant's identification to be relevant to its decision concerning the display of defendant's photograph. Consequently, even if this Court disagrees with the rulings below that no Wade hearing was required with respect to the photographic display, this Court should affirm defendant's conviction on the ground that Rison had an independent source for her in-court identification of defendant, as implicitly found by the courts below in their conclusions that the display of the photograph could not have "tainted" Rison's in-court identification of defendant. D. Any Error in the Hearing Court's Ruling Was Harmless. Even assuming, a rguendo, that it was error for the hearing court to conclude that the prosecutor's display of defendant's photograph to Rison was not an identification procedure requiring a further hearing on suggestiveness, any error was harmless beyond a reasonable doubt, and defendant's conviction should be affirmed. See People v. Crimmins, 36 N.Y.2d 230, 237 (1975). First, if a further hearing on suggestiveness had been held, it is highly unlikely that the display of defendant's photograph would have been found to be suggestive, in light of Rison's failure to recognize that photograph as a photograph of her assailant. The witness's failure to identify defendant in the photograph was strong evidence that the display of the photograph was not unduly suggestive. 49 Second, even if the display had been found suggestive notwithstanding Rison's failure to recognize the photograph, the hearing record supports the determination that, based on her observations prior to the display of the photograph, Rison had an independent source for an in-court identification of defendant (Rison: A65-75). Finally, even if Rison's in-court identification of defendant at trial should have been suppressed, any error in allowing the identification was harmless because there was overwhelming evidence of defendant's guilt apart from the in-court identification by Rison. Even if Rison had not been permitted to identify defendant at trial, she would still have been permitted to testify about the assault and her opportunity to observe her assailant at close range for a relatively lengthy period of time on the well-lit city bus, and Rison would have been permitted to testify about her recognition and identification of her assailant at Kings County Hospital two months later. These observations antedated the display of the photograph and therefore could not have been affected by it. See People v. Fluitt, 80 N.Y.2d 949 (1992); People v . Sanders, 66 N.Y.2d 906 (1985); People v. Myrick, 66 N.Y.2d 903 (1985). Moreover, Rison was not the only identifying witness at trial. Larry Joseph, the bus driver, made an in-court identification of defendant as Rison's assailant (Joseph: A286- 50 87) . Joseph explained that he had heard screams from the rear of the bus and that he had looked through his large mirror, which was designed to afford him a view of the entire bus (Joseph: A266-67, A270-72) . Joseph described watching a fight between two women during which he was able to see both women's faces clearly enough to recognize Rison as someone who frequently rode his bus (Joseph: A270-71, A273). Joseph testified that he saw defendant's entire body as she was standing up and throwing punches at Rison (Joseph: A271). Joseph noted defendant's clothing and estimated her age to be in the early thirties (Joseph: A266, A270-73, A299-301, A306- 07) .4 Joseph also got a closer look at defendant when, wearing sunglasses, she came to the front of the bus and paused inches from him to adjust her hair in his mirror before leaving the bus through the front door (Joseph: A275-77, A292-93). The reliability of Joseph's identification of defendant was supported by Officer Soland's observations. Officer Soland approximated defendant's weight at the time of her arrest to be 165 pounds, which was the same weight that Joseph estimated for Rison's assailant (Joseph: A272, A293; Soland: A520). At trial, both Officer Soland and Joseph testified that defendant had gained weight since the assault (Joseph: A286; Soland: A520). 4 According to defendant's mother, defendant was twenty-six years old at the time of trial (Walter: A372). 51 In addition, defendant's alibi was not credible. Defendant and her mother claimed that they were together at a laundromat at the time of the charged crime, but there was evidence that defendant had called or texted her mother during the relevant time period, rendering it highly unlikely that they were actually together (Marshall: A481-83). Defendant's alibi was further undermined by her mother's acknowledgement that she learned on September 10, 2008 of defendant's arrest for a crime that took place on July 3, 2008, but did not come forward at any time prior to defendant's trial to tell either the police or the prosecutor that defendant had been with her (Walter: A361, A373-81, A384-87, A390, A395-96, A400-02). See People v. Dawson, 50 N.Y.2d 311, 318 (1980) (witness's failure to come forward at earliest possible moment in order to forestall mistaken prosecution of friend or loved one might well cast doubt upon veracity of witness's exculpatory statements at trial) . Because there was overwhelming evidence of defendant's guilt apart from Rison's in-court identification, any error in the court's ruling concerning the prosecutor's photographic display was harmless. See People v. Allen, 24 N.Y.3d 441, 450 (2014); People v. Harris, 80 N.Y.2d 796, 798 (1992); Fluitt, 80 N.Y.2d at 950; People v. Owens, 74 N.Y.2d 677, 678 (1989); Crimmins, 36 N.Y.2d at 237; People v. Oliver, 34 N.Y.2d 859, 860 (1974); see also People v. Livingston, 186 A.D.2d 1076 (4th Dep't 1992) 52 (summary denial of Wade hearing on ground that identification was merely confirmatory was error, but harmless, where two additional witnesses positively identified defendant) * * * For all of these reasons, this Court should reject defendant's claim that a Wade hearing was required and should affirm the judgment of conviction. However, even if defendant were to prevail on that claim, then the appropriate remedy would be to remit the case to the Criminal Court for a Wade hearing (and, if necessary, an independent source hearing), with a direction that, if defendant prevails on the motion to suppress Rison's in-court identification, then the judgment should be vacated, the motion to suppress should be granted, and a new trial should be ordered, but if the People prevail on that motion, then the judgment should be amended to reflect that result. See People v. Brown, 86 N.Y.2d 728 (1995) (remitting for Wade hearing, where victim identified defendant in a showup following a police chase that victim initiated but, without hearing, it was impossible to determine whether the police had any influence on victim's identification); People v. Dixon, 85 N.Y.2d 218, 225 (1995) (where court improperly denied Wade hearing relating to police-arranged canvass at which complainant pointed out defendant, case was remi tted for Wade hearing); see also People v. Mato, 83 N. Y. 2d 406, 411 (1994) (where police officer's viewing of defendant did 53 not fall within exception under People v. Wharton, 74 N.Y.2d 921 [1989], Wade hearing was warranted). 54 POINT II THE HEARING COURT DID NOT ERR IN DENYING DEFENDANT'S REQUEST TO CALL THE PROSECUTOR AS A WITNESS AT THE PRETRIAL HEARING. IN ANY EVENT, ANY ERROR IN THAT RULING WAS HARMLESS. The hearing court did not err in refusing defendant's request to call the prosecutor as a witness at the pretrial hearing concerning the prosecutor's display of defendant's photograph to the complainant during trial preparation. It was within the court's discretion to deny defendant's request to call the prosecutor after defendant had a full opportunity to question the complainant at the hearing. No absolute right to compulsory process attaches to a Wade hearing or to similar pretrial suppression hearings. See People v. Chipp, 75 N.Y.2d 327, 337, cert. denied, 498 U.S. 833 (1990); see also People v. Witherspoon, 66 N.Y.2d 973, 974 (1985) (People not mandated to produce at Huntley hearing all police officers who had contact with defendant from arrest to time that defendant's statements were made); People v. Petralia, 62 N.Y.2d 47, 52 (rej ecting defendant's claim that undercover police officer who made drug purchase was required to testify at hearing on motion to suppress drugs), cert. denied, 469 U.S. 852 (1984). The decision whether to require the prosecutor to appear as a witness at the hearing was within the court's discretion, and the court's denial of defendant's request to call the prosecutor as a witness was not 55 an abuse of discretion as a matter of law. See Chipp, 75 N.Y.2d at 337, 339. First, the hearing court was properly guided by People v. Herner, 85 N.Y.2d 877 (1995). In Herner, it was the eyewitness, not the prosecutor, who testified at the midtrial hearing that was held to explore the display of the lineup photograph. See id. at 879. Here, it was likewise the eyewitness, Rison, not the prosecutor, whose testimony was most relevant to the circumstances of the display of defendant's prisoner movement slip photograph. Second, contrary to defendant's claim (Defendant's Brief at 51-53), Rison's testimony provided the evidence necessary to resolve the matter before the court. Rison's failure to recall a discussion at the time of the display of the photograph about her assailant's hairstyle did not create an issue of credibility that the court needed to resolve to determine if the display of the photograph had tainted Rison's in-court identification. The cri tical issue was what Rison was told about the photograph and whether that might have influenced her own memory of her assailant, not what the prosecutor had in mind when he displayed the photograph. Here, Rison herself testified and did not recall any comments by the prosecutor regarding the photograph beyond him asking her if she "knew" the photograph (Rison: A89). The prosecutor's recollection regarding the conversation that preceded the display 56 of the photograph was not material and pertinent to the issue of suggesti veness, and the court did not abuse its discretion in determining that his testimony was not necessary. While defendant doubts Rison's testimony that the photograph was blurry and unclear, because, according to defendant, it was "unlikely that the prosecutor would have selected a blurry photograph for use in questioning Rison" (Defendant's Brief at 52), the hearing court was entitled to credit Rison's testimony, and defendant's argument is merely speculative. See Chipp, 75 N.Y.2d at 339. Moreover, the papers that the People submitted to the court after the hearing documented that the court itself had seen the photograph before it issued its decision on the hearing (A130-3l) . In fact, before concluding that it would not permit defendant to call the prosecutor as a witness, the court had asked the parties to address in their papers whether the prosecutor was a necessary witness (A98, A100). Defendant did not argue that the complainant's testimony that the photograph was blurry was contradicted by the photograph or that the prosecutor's testimony was necessary to clarify whether the photograph was blurry. Thus, there is no basis to doubt Rison's testimony that the photograph was blurry, and defendant's argument to the contrary should be rejected. 57 Moreover, it was conceded by the People that the prosecutor had shown a single photograph to Rison. In his representation to the court, the prosecutor revealed the salient, undisputed fact that he had displayed a single photograph of defendant to Rison, which photograph Rison had never seen before, and he explained the circumstances of that photographic display (A36-37). In Rison's hearing testimony, she described how that photograph was displayed, and the prosecutor's testimony could not have assisted the court in deciding what Rison perceived at the time of the photographic display and whether that display would taint Rison's in-court identification. Thus, the hearing court did not err in denying defendant's request to call the prosecutor as a witness at the hearing. See People v. Abrew, 95 N.Y.2d 806, 808 (2000) (court did not abuse its discretion in denying defendant's request to call complainant at Wade hearing); People v. Peterkin, 75 N.Y.2d 985 (1990) (same); Chipp, 75 N.Y.2d at 336, 338-39 (contention that complainant might have revealed that something improper was said to her during identification procedure was speculative, and it was not abuse of discretion to deny defendant's request to call complainant at Wade hearing); People v. Whaul, 63 A.D.3d 1182, 1183 (2d Dep't 2009) (hearing court providently exercised its discretion in denying defendant's request to call one of arresting officers to testify at pretrial hearing, where request "was not supported by a 'bona 58 fide factual predicate' demonstrating that the witness might provide material, noncumulative evidence" [citation omitted]); Peop le v. Morrison, 244 A.O.2d 168, 169 (1st Oep't 1997) (hearing court properly denied defendant's application to call arresting officer's partner, since request was based on mere speculation); People v. Sanchez, 230 A.O.2d 634 (1st Oep't 1996) (same); cf. People v. Ocasio, 134 A.O.2d 293, 294 (2d Oep't 1987) (court erred in refusing to allow defendant to call identifying witnesses at Wade hearing, where detective's testimony was "notably incomplete" regarding whether witnesses conferred about their identifications in waiting room) . In any event, any error in denying defendant's request to call the prosecutor as a witness at the pretrial hearing was harmless. Particularly in light of Rison's testimony that she did not recognize the photograph as a photograph of defendant, there is no reason to believe that the prosecutor's testimony at the hearing would have resulted in a finding that the display of the photograph constituted an unduly suggestive identification procedure; and, regardless of the prosecutor's testimony about the circumstances of the display of the photograph, Rison's testimony showed that she had an independent source for her in-court identification of defendant. Thus, any error in the denial of defendant's request to call the prosecutor as a witness would not have changed the court's ruling regarding the admissibility of 59 Rison's in-court identification . See Point I , supra , at 30-31, 48. Furthermore, even if the complainant ' s in-court identification had been suppressed , that ruling would not have affected the admissibility of evidence of the spontaneous point- out identification that she made of defendant prior to the prosecutor ' s display of the photograph . Moreover, t here was ample additional evidence of defendant ' s guilt apart from the complainant ' s identification , including the identification of defendant by the bus driver. See Point I , supra at 50-52. Under these circumstances , any error in the court's ruling denying defendant ' s request to call the prosecutor as a witness was harmless . See People v . Crimmins , 36 N.Y . 2d 230 , 242 (1975) . 60 CONCLUSION THE ORDER OF THE APPELLATE TERM AFFIRMING DEFENDANT 'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED . Dated : Brooklyn , New York March 20 , 2015 y~;2. £-;, LEONARD JOBLOVE CAMILLE O' HARA GILLESPIE DIANE R. EISNER Assistant District Attorneys of Counsel Respectfully submitted , KENNETH P. THOMPSON District Attorney Kings County 61