People v. Green

Judgment, Supreme Court, New York County (Richard Lowe, III, J.), rendered July 14, 1992, convicting defendant, after a jury trial, of grand larceny in the fourth degree and sentencing him, as a second felony offender, to 2 to 4 years in prison, unanimously reversed, on the law, and the matter remanded for a new trial.

Once the prosecution stated, in its response to defendant’s omnibus motion, that it did not intend to use any identification evidence at trial, the court was obligated to grant defendant’s motion to suppress such testimony (CPL 710.60 [2] [b]; see, People v White, 73 NY2d 468, 475-476, cert denied 493 US 859). It was, therefore, error for the court to permit the prosecution to question one of the witnesses concerning her identification of defendant. Since the remaining evidence of guilt was not overwhelming, this error may not be deemed harmless, and the conviction must be reversed. Concur—Ellerin, J. P., Wallach, Kupferman, Asch and Mazzarelli, JJ.