PEOPLE v. DAVIS (2020)

MEMORANDUM AND ORDER

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

Memorandum: On appeal from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25[2]), defendant contends that Supreme Court erred in denying his motion to reopen the Wade hearing after the victim testified at trial that she believed that a police officer presented her stolen cell phone to her prior to administering the show-up identification. Contrary to defendant's contention, the totality of the victim's testimony reveals some confusion, whereas the police officer's testimony was clear and consistent that, after the victim identified defendant, a police officer showed her the cell phone and asked if she recognized it. Consequently, we conclude that the court did not abuse its discretion in denying defendant's motion to reopen the Wade hearing (see People v. Gilley, 163 A.D.3d 1156, 1159, 80 N.Y.S.3d 554 (3d Dept. 2018), lv denied 33 N.Y.3d 948, 100 N.Y.S.3d 198, 123 N.E.3d 857 [2019]). In any event, inasmuch as there is overwhelming evidence of defendant's guilt and no reasonable possibility that defendant otherwise would have been acquitted, any error in the court's denial of defendant's motion is harmless (see People v. Fuentes, 52 A.D.3d 1297, 1298, 859 N.Y.S.2d 841 (4th Dept. 2008), lv denied 11 N.Y.3d 736, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008]; see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).