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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Frank ARMSTRONG, a/k/a Eddie Franklin, Appellant.

Decided: November 26, 2001

CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT and SANDRA L. TOWNES, JJ. Andrew C. Fine, New York, N.Y. (Katheryne M. Martone of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Silverman, J.), rendered February 23, 1999, convicting him of manslaughter in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

A prosecution witness, who had not made a pretrial identification of the defendant, was seated in the spectator section of the courtroom during the last 10 minutes of the testimony of another prosecution witness.   The defendant contends that the trial court erred in permitting that witness to make an in-court identification without first holding a hearing to determine whether such an identification was tainted by observations made in the courtroom.   The defendant further contends that the trial court should have permitted him to sit in the spectator section of the courtroom with persons of similar appearance during the identification testimony, in order to overcome any suggestiveness.

Assuming that the trial court erred in permitting an in-court identification, any such error was harmless due to the overwhelming evidence of the defendant's guilt, which included identification testimony provided by other witnesses (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Samuels, 133 A.D.2d 785, 520 N.Y.S.2d 172).

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