Torts · MBE-tested
The People of the State of New York, Respondent, v. Jason Stubbs, Appellant
305 A.D.2d 1096759 N.Y.S.2d 718·New York Supreme Court, Appellate Division·2003·NY
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Opinion
The People of the State of New York, Respondent, v Jason Stubbs, Appellant.
[759 NYS2d 718]
[MAJORITY]
—Appeal from a judgment of Monroe County Court (Schwartz, J.), entered May 10, 2001, convicting defendant after a jury trial of assault in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05 [1]). We reject defendant’s contention that County Court erred in refusing to conduct a Wade hearing. Civilian-initiated identification procedures do not require a Wade hearing (see People v Dixon, 85 NY2d 218, 222 [1995]; People v Harris, 288 AD2d 20 [2001], lv denied 97 NY2d 755 [2002]; People v Lewis, 258 AD2d 287, 288 [1999]; People v Rumph, 248 AD2d 142 [1998], lv denied 92 NY2d 860 [1998]). Here, the court had sufficient evidence before it, based on the testimony at the preliminary hearing, to determine as a matter of law that the identification procedure was initiated by the victim and that a Wade hearing therefore was not required (see Rumph, 248 AD2d at 142). Present — Pigott, Jr., P.J., Pine, Hurlbutt, Lawton and Hayes, JJ.