The opinion by the majority asserts that: "In the case herein appealed, in the first instance, identity was not in issue. Defense counsel repeatedly offered to concede identification during the various applications and during the People’s case. More to the point, counsel stated that defendant would testify to engaging in sexual activity with Consolazio, which defendant in fact did.”
However, the record reflects that the evidence did not conclusively establish defendant’s identity and, hence, the identity exception set forth in Molineux (People v Molineux, 168 NY 264) should apply, authorizing the People to adequately prove defendant’s identity (see, People v Beam, 57 NY2d 241, 251).
The record shows careful consideration by the court, at all stages, of whether the issue of identity had been raised, whether the defendant’s identity had been conclusively established and whether the pattern employed in the two crimes was sufficiently unique. Contrary to the conclusion reached by the majority here, defendant questioned the proof of his identity at every turn and repeatedly stated his intention to pursue an identification defense. Thus, prior to the opening of the trial, the District Attorney told the court:
"Judge, as you know, the case of People v Molineux and its progeny involve situations where you can prove an incident similar to the one with which the defendant is charged when the circumstances surrounding the two incidents are so unique and so similar that they address one of-several key issues, one of which is identification.
"the court: The first issue is, is the issue of identification the issue that is going to be raised in this trial?”
The court then asked defense counsel: "Are you going to raise the issue of identification?” and defense counsel answered "Yes”. After the People’s direct examination of the complaining witness, Marilyn Consolazio, and before his cross-examination of her, defense counsel said:
"In view of this problem concerning Molineux, I cannot proceed to cross-examine until the issue is resolved because it will affect which way I go with my defense and my cross-examination will have to reflect a defense.
"If your Honor is going to indicate that Molineux may be *27used to admit the Bronx case for the purpose of establishing identity, then I may be prepared to concede the identity issue and move the defense in a different direction based on activities that may have taken place in that apartment and elsewhere.
"If your Honor suppresses the Molineux issue, then I might move in a different direction concerning the question of identity.” (Emphasis added.)
The court then told counsel that it would not make an anticipatory ruling at that time and that it was not its function to suggest the strategy of defense counsel.
Thereafter, toward the end of the People’s case, the People gave a detailed offer of proof as to the testimony Jessica Diaz would furnish under the Molineux doctrine. Apparently, at that time, for the first time, defense counsel noted: "In any event, the defendant at this time in this trial is not going to challenge the identity issue. We do not intend to raise the identity issue. Defendant will testify at trial. He will admit being present at that time and place with Miss Pizzaro [Consolazio]. He will tell a different version of events as to what took place. I will not raise the identification issue in my summation. I will not allude to it. We will concede that he was there, only that there is a different version of facts as to what actually in fact took place. I understand, of course, if the defendant shouldn’t testify that the People might be in a position to raise this issue again but that is the defendant’s present position.”
In response to that, the court noted that it had deferred its ruling with respect to the admissibility of the prior charged crime and previously had stated that it would make its ruling based upon the application of the law to the facts as then presented. The court pointed out: "You then proceeded at that time, and you raised extensively during the course of cross-examination, the issue of identification. The issue is therefore before the Court and cannot be withdrawn simply by either your concession or statement which is not a statement unless the People want to enter into a stipulation.”
After the People refused to make such a stipulation, the court noted that defense counsel "implied that if this is admissible, then the defendant may testify or probably would testify and therefore you would take the issue out. If it’s not admissible then you reserve your right to argue the issue before the jury on both identification and any other defense *28you may wish to offer. As I said then decisions are not made based upon the strategic determination of the defendant.”
The court then allowed the introduction of the other Bronx crime under People v Molineux (supra).
Further, although defense counsel at that time was willing to stipulate or concede, etc., it is abundantly clear that at that time identity was indeed at issue and was not conclusively established. In fact, until the moment when the evidence of prior crimes was admitted, defendant questioned the proof of his identity at each possible occasion. Defendant offered to withdraw the identification issue and conceded only to prevent Diaz from testifying after it was patently clear to Criminal Term that identification was an issue and had not been conclusively established by the People.
Defendant’s trial testimony was, of course, after the fact, i.e., after the court’s ruling, and could not serve to render the identification issue moot at the time the court made its ruling. However, it is interesting to note that defendant in his testimony denied that he had any contact whatever with the victim on the date of the crimes charged, asserting that he had left New York two days earlier. Thus, defendant’s testimony, contrary to defense counsel’s prior attempted stipulation, left open the question of who the attacker of Consolazio was, leaving identity still at issue.
Further, although the majority notes that the court refused to conduct a Ventimiglia hearing before the cross-examination of Consolazio, the court, in People v Ventimiglia (52 NY2d 350), said: "There is, moreover, a greater probability of error, and consequent waste of scarce judicial resources, when evidentiary rulings are made during trial than in the more relaxed atmosphere of an inquiry out of the presence of the jury. Whether some time prior to trial, just before the trial begins or just before the witness testifies will depend upon the circumstances of the particular case” (supra, at 362; emphasis added).
Indeed, as the People correctly note, when similar crime proof is offered on the issue of identification, it would make little sense to render a ruling before all the other proof of identification has been presented. Here, it appears the court took its obligation seriously to decide whether defendant’s identity had already been "conclusively established”. Accordingly, the timing of the trial court’s ruling, i.e., toward the close of the People’s case but before any testimony by Diaz, was proper (see, People v Condon, 26 NY2d 139, 142).
*29While the majority also asserts that the Consolazio and Diaz incidents were dissimilar rather than similar, defendant upon this appeal does not argue that the pattern employed in both crimes was not highly unique, therefore abandoning on appeal the contention he raised in the trial court. In any event, contrary to the interpretation of the majority, the facts of both crimes were remarkably similar, with the defendant employing an unusual modus operandi. Thus, with respect to Consolazio, defendant, in the presence of her two young children, took some photographs, and when she refused to let him take nude pictures, he forced her into the bathroom, where he sodomized and raped her. He warned her after the crime not to report it and compelled her to sign a "consent form”, used by professional photographers, which recited that defendant had taken photos of her for a fee. About two months later, after defendant met Jessica Diaz on the street and told Diaz that he was a professional photographer, they went to her house, before going to his office to take pictures, to ascertain what wardrobe she had for the pictures. There, at gunpoint, he ordered her to disrobe, in the bathroom again, and threatened to kill her. This planned rape, however, was thwarted when she threw rubbing alcohol in his face. He fled but left pictures of himself, and various identification cards, behind.
Thus, the defendant’s modus operandi was sufficiently unique to make the evidence of the uncharged crime probative of the fact that he committed the one charged (see, People v Condon, supra, at 144), and the defendant’s identity remained in dispute up until the time that the court made its ruling. It was put into issue by the defense cross-examination of the victim, which raised questions concerning the validity of the identification (see, People v Beam, supra, at 251).
The majority concedes that the defendant has not raised the extent of the sentences as an issue on the appeal. Therefore, it is not now before us. Moreover, because of the heinous nature of the acts committed by the defendant, there is no basis to interfere with the sentences imposed by Criminal Term.
Accordingly, the judgment of the Supreme Court, New York County (Kleiman, J.), rendered July 13, 1987, convicting defendant, after trial by jury, of rape in the first degree, sodomy in the first degree and burglary in the first degree, and sentencing him, as a predicate felony offender, to concurrent terms of 12 Vi to 25 years on the sex crime counts and a consecutive term of 12 V% to 25 years on the burglary count, should be affirmed.
*30Rosenberger and Ellerin, JJ., concur with Carro, J.; Asch, J., and Sullivan, J. P., dissent in a separate opinion by Asch, J.
Judgment, Supreme Court, New York County, rendered on July 13, 1987, reversed, on the law, and the matter remanded for a new trial.