The defendant moves this Court to preclude the in-court identification by a witness, Annette Davis, based on the People's failure to provide notice, pursuant to Criminal Procedure Law Section 710.30(1), that the witness previously viewed a photo array. The People argue that as they do not intend to introduce the photo array into evidence at trial, nor could they, no notice pursuant to C.P.L. § 710.30(1) is required. The defendant contends that despite the People's inability to introduce the photo array into evidence at trial, the statute still requires that notice be given. The Court concludes that preclusion of the in-court identification by the witness, Annette Davis, is required under the facts and circumstances of this case.

By Indictment Number 5209/10, the defendant is charged with multiple felony offenses relating to the assaults of three separate victims. Jury selection commenced on July 10, 2012, and at that time, the People represented to the Court that they had fulfilled their obligations pursuant to the Rosario rule, by providing the defendant with a complete set of Rosario material. [*2]See People v. Rosario, 9 NY2d 286 (1961). They had not. The People began their direct case on July 11, 2012. On July 12, 2012, and after the People had called four witnesses, the People provided the defendant with fifteen new pages of Rosario material, including complaint follow up reports and other substantive reports relating to the investigation of this case, some of which contained potential impeachment material relating to a witness who had already testified at trial.^[FN1] The trial continued. The following day, July 13, 2012, the People provided the defendant with seven additional pages of Rosario material, including statements of two witnesses who were scheduled to appear at trial, one of whom had testified at the suppression hearing, two complaint follow up reports, as well as photocopies of photo arrays revealing for the first time that arrays had been conducted with two of the three victims in the case.^[FN2] Based on the seriousness of the late disclosures, and most notably that the late disclosures arguably supported a different defense, that of misidentification, the defendant moved for, and was granted, a mistrial.^[FN3] Following the declaration of a mistrial, the defendant moved to preclude the proposed in-court identification by Annette Davis as the defendant never received notice of Davis' prior out-of-court identification, the photo array.

Both parties cite People v. Grajales, 8 NY3d 861 (2007), in support of their respective positions, reaching opposite conclusions. The People contend that Grajales stands for the proposition that because a photo array is inadmissible as evidence at trial, notification pursuant to C.P.L. § 710.30(1) is not required. The defendant contends that Grajales does not eliminate the notice requirement relative to a photo array pursuant to C.P.L. § 710.30(1).

In Grajales there were two pre-trial identification procedures — a point-out and a photo array. The People gave notice of their intent to offer identification testimony at trial, specifying only the point-out. The defendant in that case argued that as there was no notice specifically of the photo array, the witness's in-court identification of the defendant must be precluded, even though the defendant had received notice of an impending in-court identification. The People disagreed, arguing that C.P.L. § 710.30(1) does not require notice of a pre-trial photo array. The Court of Appeals held that the mandates of C.P.L. § 710.30(1) had been met in Grajales as notice of a "pretrial identification intended to be offered at trial," was timely given. Id. at 862. As the People served notice of an identification procedure, putting the defendant on notice that there would be an in-court identification, the statute was satisfied. Id. Indeed, as the Grajales Court [*3]found, "notice of identification evidence is crucial" and "the burden is placed squarely on the People to provide notice to the defendant," Id. at 864, which, in Grajales, they did.

In the instant matter, however, and unlike Grajales, the People failed to serve any notice. The case at bar is, therefore, more closely related to the Second Department's decision in People v. Nolasco, 701 AD3d 972 (2d Dept. 2010). In Nolasco, the People failed to serve notice of one witness's pre-trial identification of the defendant. The defendant moved for preclusion of the in-court identification of that one witness. On appeal, the Appellate Division ruled that as the defendant received no notice whatsoever of any identification procedure relative to that witness, the defendant was denied a fair trial by admission of that witness's in-court identification. In this case, the defendant similarly received no notice of any identification procedure. That the identification evidence in this case was a photo array is of no moment, as C.P.L. § 710.30(1) requires notice of the People's intent to offer in-court identification testimony by any witness who made a prior identification, which in this case, the People failed to do. This issue has also been addressed in People v. Smothers, 20 Misc 3d 654 (Kings Co. Sup. Ct. 2008), where the Court held that the People must serve notice when a witness will make an in-court identification of the defendant, as it is "the existence of the prior, out-of-court identification which is the triggering event for the requirement of notice and the notice that the People are obligated to serve is of their intent to offer in-court identification testimony by any witness who made [] a prior identification." People v. Smothers, at 654 (internal emphasis omitted).

The Court finds, therefore, that the preclusion of the in-court identification of Annette Davis in this case is required. See also People v. Perez, 177 AD2d 657 (2d Dept. 1991).

This constitutes the Decision and Order of the Court.

July 26, 2012

_______________________ J.S.C.