in a memorandum as follows: I agree that defendant’s conviction for attempted sodomy in the first degree and sexual abuse in the first degree must be reversed because of the trial court’s failure to conduct an inquiry of the kind found constitutionally required by the Court of Appeals in People v Jones (47 NY2d 409) before closing the courtroom during the testimony of a complaining witness.
I reach this conclusion reluctantly because it is apparent that the circumstances known to the trial court justified the action taken, and it is by no means clear to me that the situation presented by the testimony of the victim of á sex offense is comparable to that presented by an undercover police officer. However, no relevant authority appears to exclude the testimony of the victim of a sexual assault from the requirement of an inquiry on the record before closing the courtroom.
I do not agree with the court’s analysis of the "bolstering” issue. The question seems to me of sufficient interest to merit comment.
Preliminarily, I am not convinced that any bolstering violation in fact occurred. As was made clear by the Court of Appeals in People v Trowbridge (305 NY 471), the bolstering rule is a particular application of hearsay principles. Although the issue is not free from doubt, I believe that the challenged *108testimony of. the police officer would come within the excited utterance exception under the principles set forth by the Court of Appeals in People v Edwards (47 NY2d 493). Significantly, Edwards (at p 498) cited with approval United States v Napier (518 F2d 316, 318 [9th Cir 1975], cert denied 423 US 895), a case in which the court found admissible as an excited utterance an out-of-court identification by the victim of a violent crime who unexpectedly observed the defendant’s picture in a newspaper, and in a state of agitation identified the picture as that of her assailant. Although the facts here are not as compelling for the application of the excited utterance principle as they were in Napier, I believe that what occurred here does come within that exception to the hearsay rule.
Moreover, there are occasions, and this trial discloses such an occasion, in which the circumstances surrounding a pretrial identification are clearly relevant to an evaluation of the credibility of the witness. In such a situation it would seem a clear error to exclude what would be otherwise unobjectionable, relevant testimony as to the circumstances because it was implicit in such testimony that a witness had made an identification.
Assuming that what occurred was in fact a violation of the bolstering principle, I do not believe that the defendant was prejudiced by the officer’s testimony to the extent that the officer confirmed that the complaining witness had made a pretrial identification of the defendant. Indeed, I find it difficult to envisage a situation in which a jury’s determination of guilt or innocence would in any way be affected by the testimony of one or two witnesses confirming a prior identification by an identifying witness who testified to that identification at the trial. If the fact of the prior identification is not in issue, the reference to it by one or two witnesses is normally, at best, an innocuous confirmation of a fact not in issue. If the fact of the prior identification is in issue, such testimony would clearly be relevant and admissible.
No doubt a different problem would be presented if the prosecutor were permitted to elicit testimony with regard to a prior identification by a number of witnesses. That problem is not presented here. It is true that in People v Trowbridge (supra), the Court of Appeals reversed in a situation where only one witness gave "bolstering testimony” with regard to a prior identification. But a study of that opinion makes it clear that the court majority was influenced by very severe doubts, which were painstakingly detailed in the opinion, as to the *109reliability of the evidence that had been presented against the defendant.
The more troublesome problem with regard to the challenged testimony of the police officer seems to me one of relevance, not one of hearsay or bolstering. The testimony was apparently elicited on the assumption that the agitation of the complaining witness on observing the person she believed to have been her assailant in some way added to the reliability of her identification. This might well be so if a trial issue was presented as to the truthfulness of the witness. It is not at all clear that such an inference is a reasonable one where the only issue raised relates to the accuracy of the identification. The question of the relevance of the testimony — that is, its probative force weighed against its possible prejudice — was not argued on the appeal, and I think it is a close one. On balance, I believe that the officer’s testimony with regard to the emotional reaction of the complaining witness on observing the defendant, something to which the witness herself had testified, gave excessive weight to evidence of doubtful value and provides a separate basis for reversing the conviction.