AD2 order dated September 13, 2011, affirming judgment of conviction. Decision below: 87 AD3d 1042, 929 NYS2d 180. Graffeo, J., granted leave December 13, 2011.

ISSUES PRESENTED: (1) The admissibility at trial of a show-up ID where no CPL 710.30 notice of the show-up had been provided. (2) Whether trial counsel was ineffective for failing to move to preclude the show-up ID. (Assigned counsel: Warren S. Landau & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10^th Floor, NYC 10006.)

Issue before the Court:  Whether counsel was ineffective for failing to object under C.P.L. 710.30 to testimony about a victim's out-of-court identification.

Held: There was no egregious error in counsel's failure to object to the introduction of the evidence.  While counsel could have objected on these grounds and made a motion to suppress the identification, the objection would not have been so compelling as to constitute the type of single error warranting an ineffectiveness finding.  Also, the defendant could not show that he was prejudiced by the error since the other evidence of identification was strong and the defendant had made statements in the grand jury suggesting he had in fact interacted with the victim, although he denied attempting to rob or menace him.

CAL Observes: This case continues to demonstrate the difficulty of establishing ineffective assistance based on a single error by counsel.  The Court did not rule on the issue of whether a violation of 710.30 had in fact occurred, but decided that even if it had, the error would not support an ineffectiveness finding.  The Court observed that under the federal standard there had been no showing that the outcome would have been different if counsel had objected and the evidence had been suppressed.  Here, the identification evidence arguably subject to suppression was a close-in-time statement that followed the initial point-out identification for which notice had been provided.  The Court also noted that under New York's standard, a defendant's inability to show the probability of a different outcome but for counsel's mistakes, was a "significant" factor to be considered.