(dissenting). Because I believe Supreme Court abused its discretion in allowing the jury to consider identification evidence concerning complainant’s prior out-of-court identification of defendant’s alleged accomplice, I respectfully dissent.
In the early morning hours of June 10, 2006, complainant was returning to his home in upper Manhattan after an evening socializing with friends. As complainant attempted to enter his apartment, located on East 103rd Street between Lexington and Park Avenues, defendant and another man named Cruz allegedly tackled him from behind on his front door landing. Complainant, who was wearing headphones and listening to music at the time, neither saw nor heard the two men approach him. During the attack, the men allegedly pinned complainant, face up, to the ground. According to the complainant, Cruz rummaged through his pockets, removing $21 and a cell phone, while defendant forcefully held complainant in place. At trial, complainant testified that the incident lasted “less than a minute.” Complainant further explained that, after the attack, defendant and Cruz headed west on 103rd Street toward Park Avenue with their backs facing him. He pleaded with defendant and Cruz to return his phone, but the two declined to turn around and engage with complainant. Complainant identified defendant in court during the trial. He had never seen defendant and Cruz before the attack and there were no other eyewitnesses to the robbery.
There were some inconsistencies in the proof adduced at trial. For example, shortly after the incident, complainant called 911. He described the man later identified as Cruz as Hispanic and the man later identified as defendant as black. Complainant told the 911 dispatcher that he believed both men were in their early 20s and that defendant was wearing a white shirt. Complainant could not recall what Cruz was wearing. Although complainant testified at trial that he had no difficultly seeing defendant and Cruz because the area near his apartment was well lit and their unconcealed faces were within an arm’s length of complainant’s face at the time of the attack, the evidence before the jury nonetheless established that defendant, in fact, *928was almost 40 years old and was wearing a dark shirt when the police arrested him later that evening. Furthermore, contrary to complainant’s testimony, the arresting officer at trial stated that he was familiar with 103rd Street between Lexington and Park Avenues, which he described as “not well lit” and “fairly dark.”
Moreover, according to the arresting officer, both defendant and Cruz were apprehended together on 103rd Street and Park Avenue, after the police had observed them running together. A command log, admitted into evidence at trial, however, indicated that Cruz — who was in possession of complainant’s property at the time of the arrest — had been stopped a block away on 104th Street and Park Avenue.
In any event, following their arrest, complainant identified defendant and Cruz in a police-arranged showup identification procedure. In an omnibus motion, defendant moved to suppress complainant’s pretrial identification of defendant. After a suppression hearing, Supreme Court granted the motion. Prior to the commencement of defendant’s trial, defense counsel moved to exclude complainant’s pretrial identification of Cruz as well. Counsel argued that the court should “preclude the Prosecutor from asking about the show-up [identification] of . . . Cruz because [the jury is] going to speculate that [defendant] was there as well.” Counsel contended that such speculation would unfairly prejudice defendant. Supreme Court denied the motion.
During the trial, the People elicited extensive evidence pertaining to complainant’s pretrial identification of Cruz. Complainant explained that the responding officers told him that he would be asked to make an identification. Shortly thereafter, an unmarked black car arrived in front of complainant’s apartment building, which again was described by him as well lit. A man emerged from the back seat of the vehicle who complainant identified as Cruz. Complainant, who estimated that he was standing approximately 20 feet from Cruz, stated that he had no doubt that Cruz was the individual who had rifled through his pockets and stole his belongings.
Following the close of proof, defendant renewed his objection to the admission of Cruz’s pretrial identification, albeit for different reasons. This time counsel, citing People v Monroe (40 NY2d 1096 [1977]), argued that the evidence should be stricken because “in a severed trial, . . . the [identification] evidence of the co-defendant [who is] not on trial is irrelevant and thus inadmissible.” Supreme Court denied the motion.
*929At summation, the People, in arguing that the proof established beyond a reasonable doubt that defendant was the perpetrator, heavily relied on complainant’s pretrial identification of Cruz. The People suggested that complainant’s in-court identification of defendant was accurate because “he’s one for one . . . Cruz has [complainant’s] property on him and [complainant] gets it back that night. So he’s one for one.”
■ Counsel again renewed her objection to the admission of complainant’s pretrial identification of Cruz after the court submitted the case to the jury. In denying defendant’s motion at that juncture, the court reasoned that the evidence was relevant since, “[a]fter all, the complainant’s ability to observe and remember were crucial issues in this particular case.”
“In New York, the general rule is that all relevant evidence is admissible unless its admission violates some exclusionary rule” (People v Scarola, 71 NY2d 769, 777 [1988], citing People v Alvino, 71 NY2d 233, 242 [1987]). “Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence” (id.). It is well settled, however, that “[n]ot all relevant evidence is admissible as of right” (id.). “Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury” (id. [emphasis added]).
Applying this standard to the circumstances of this case, it is argued that complainant’s pretrial identification of Cruz was material or relevant in that it established that the conditions on the landing of complainant’s building at the time of the robbery enabled him to observe defendant and accurately identify him at trial (see majority mem at 926-927; see generally People v Wilder, 93 NY2d 352, 357 [1999]). In a proper case, evidence of a witness’s identification of an accomplice not on trial may be admissible, but not here. Here, the probative value of complainant’s pretrial identification of Cruz was substantially outweighed by the unfair prejudice the admission of this evidence had on defendant, further compounded by its exploitation during the People’s summation.
To begin, this was a one-witness identification case. The perpetrators of the crime attacked complainant from behind in the middle of the night and complainant did not see or hear them approach. According to complainant, the robbery lasted *930less than a minute and when the perpetrators fled, complainant could no longer see their faces. Furthermore, complainant described defendant as a black male in his early 20s wearing a white shirt. Defendant was actually close to 40 years old and wearing a dark shirt the night the robbery took place. Moreover, there was conflicting testimony concerning the lighting conditions of the crime scene. The evidence was also inconsistent as to whether Cruz, who was in possession of complainant’s cell phone, was arrested alongside defendant or a block apart after the crime took place. Under these circumstances, where the proof introduced at trial is anything but overwhelming, the People’s heavy reliance on the accuracy of complainant’s pretrial identification of Cruz unduly prejudiced defendant. Since counsel lodged an objection to the admission of this evidence at the close of proof on relevancy grounds, at a time when Supreme Court could correct the error (see People v Gray, 86 NY2d 10, 19 [1995]), Supreme Court abused its discretion as a matter of law in failing to strike complainant’s testimony on this issue (see e.g. People v Rosado, 273 AD2d 325, 326-327 [2d Dept 2000]; cf. Wilder, 93 NY2d at 358).
For these reasons, I also disagree with the conclusion reached by the majority at the Appellate Division that any error in the admission of complainant’s pretrial identification of Cruz was “harmless” (People v Thomas, 68 AD3d 685, 685 [1st Dept 2009]), as the evidence of guilt in this one-witness identification case was clearly not overwhelming.
Accordingly, I would vote to reverse the order of the Appellate Division and grant defendant a new trial.
Judges Graffeo, Read, Smith and Pigott concur; Judge Ciparick dissents and votes to reverse in an opinion in which Chief Judge Lippman and Judge Jones concur.
Order affirmed in a memorandum.