The Court of Appeals held in People v Grajales (8 NY3d 861 [2007]) that the People are not required to give 710.30 notice of identifications of the defendant made during a photo identification procedure, such as an array The Court reasoned that because testimony regarding photographic identification procedures is not admissible, the People cannot "intend to offer at trial" such testimony. Thus, such testimony does not fall within the scope of 710.30.

The scope of this decision might be more limited than some have feared. A Supreme Court (Kings County) judge in People v Smothers (20 Misc 3d 654[Sup Ct, Kings County 2008]), has issued a decision, which interprets Grajales and 710.30 as requiring the People to give 710.30 notice of their intent to offer in-court identification testimony of any witness who has previously identified the defendant in a photo-array or other photographic identification procedure, notwithstanding the People's lack of intent to offer testimony of the pretrial identification procedure. The court explained that where "the pretrial identification procedure is one that would not be admissible at trial on he People's-case in-chief, such as a photographic array,, it is that identification procedure that need not be noticed." However, "Grajales did not hold nor even suggest that the People are not obligated to serve CPL 710.30 notice as to a prospective identifying witness who made a prior photographic identification."

The holding in Smothers appears to be supported by 710.30's language. Notice is required "whenever the people intend to offer at trial" "testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such" (CPL 710.30 [1] [emphasis added]).

Thus, it can be argued that in-court identification testimony by a witness who previously identified the defendant as in a photo-array is "testimony regarding an observation of the defendant . . . upon some other occasion relevant to the case [i.e. testimony regarding the witness's observation of the defendant in-court] by a witness who has previously identified him as such."

Written by Drew R. DuBrin, Special Assistant Monroe County Public Defender