(concurring).
I am in agreement with the conclusion of the Justices in the majority that the judgment of conviction should be affirmed, but I am at variance with their reasoning. I believe that when a witness testifies at trial that he *477has previously identified the perpetrator of a crime at a preliminary felony hearing or a Wade hearing (CPL 60.30), prior notice to the defense that such testimony will be elicited at the trial is not required by the dictates of CPL 710.30 (subd 1) because such testimony does not constitute “testimony regarding an observation of the defendant * * * upon some other occasion relevant to the case”. Although this court has previously reached conflicting conclusions on this issue (see People v Jones, 99 AD2d 471; but see People v James, 100 AD2d 552; People v Cruz, 88 AD2d 621), I believe that the legislative history of CPL 710.30 and the salutary purpose to be served by the provision are consistent with a conclusion that no notice is required.
In People v Gissendanner (48 NY2d 543, 552) the Court of Appeals stated with regard to CPL 710.30: “The statute was apparently a legislative response to the problem of suggestive and misleading pretrial identification procedures treated by the Supreme Court in Gilbert v California (388 US 263), United States v Wade (388 US 218) and Stovall v Denno (388 US 293). The focus of those decisions was on in-court identifications predicated on earlier police-arranged confrontations between a defendant and an eyewitness, typically involving the use of lineups, showups or photographs, for the purpose of establishing the identity of the criminal actor (see Levine & Tapp, Psychology of Criminal Identification: The Gap from Wade to Kirby, 121 U of Pa L Rev 1079, 1086 et seq.)” (emphasis supplied). Case law has consistently focused on the applicability of CPL 710.30 to police-arranged confrontations used for the purpose of establishing the identity of a criminal actor (People v Tas, 51 NY2d 915; People v Berkowitz, 50 NY2d 333, 338, n 1; People v Jones, 99 AD2d 471, supra; People v Dukes, 97 AD2d 445; Matter of Leo T., 87 AD2d 297). A felony hearing, however, is directed towards determining whether there is sufficient evidence to warrant further criminal proceedings. A Wade hearing {United States v Wade, 388 US 218) is utilized to determine whether a previous identification was tainted by undue suggestiveness. Neither proceeding involves a police-arranged confrontation for the purpose of establishing the identity of the criminal actor, and so the requirement of CPL 710.30 notice is inapplicable.
This analysis is consistent with the salutary purpose underlying CPL 710.30. In Professor Richard Denzer’s Practice Commentary to CPL 710.30 (McKinney’s Cons Laws of NY, Book II A, CPL 710.30, pp 282-283) he notes:
“Since the defendant ordinarily knows before trial that property constituting potential evidence against him has been seized from his premises or possession, no requirement of notice with *478respect to that type of evidence was required under the Criminal Code (§§ 813-c to 813-e), and none is required here.
“Although it is likely that the defendant will be aware of the People’s intention to use a pre-trial confession or statement made by him, and also that there is a prospective trial witness who has made a pre-trial identification of him, requirements of notice to those effects are nevertheless postulated by virtue of a reasonable possibility of unawareness in some such situations (subd 1)”.
In the context of police-arranged lineups, showups and photographic identification procedures, the rationale of a concern about a “reasonable possibility of unawareness in some * * * situations” applies. At a Wade hearing and at a preliminary felony hearing, however, the defendant will be represented by counsel (United States v Wade, 388 US 218, supra; Moore v Illinois, 434 US 220), and thus there will be an unavoidable awareness that an identification has taken place within these contexts. There is also an ability to challenge the suggestive nature of any identification which may occur at a preliminary hearing or Wade hearing at the hearings themselves. Accordingly, there is no need to apply CPL 710.30 requirements to Wade hearings and preliminary felony hearings.
As a final point, it should also be noted that if a defendant is entitled to a new hearing to determine the suggestiveness of the previous Wade hearing, it could become theoretically possible to require an indeterminate number of hearings to determine the suggestiveness of the previous hearing.
For the reasons stated, the judgment of conviction should be affirmed.