In re James H.

Final order of disposition, Family Court, New York County (Mortimer Getzels, J., at fact-finding hearing; Bruce M. Kaplan, J., at disposition), entered, after a nonjury trial, on or about April 21, 1986, adjudging respondent to be a juvenile delinquent and placing him on probation for two years for an act which, if committed by an adult, would constitute assault in the second degree, modified, on the law and the facts, to adjudge respondent a juvenile delinquent for an act which, if committed by an adult, would constitute assault in the third degree (Penal Law § 120.00 [1]), and the matter remanded for a revised disposition consistent with the foregoing, without costs.

The theory of this prosecution was that respondent committed an assault upon complainant by kicking him in the head while he was prostrate on the sidewalk, and thus respondent’s alleged criminal act constituted a second degree assault (Penal Law § 120.05 [2]) in that he caused complainant physical injury by use of a dangerous instrument, namely, his booted foot.

The only evidence offered by the prosecuting agency was complainant’s testimony that respondent, who appeared to be part of a group of young persons surrounding complainant and his companion, spun complainant around and struck him in the face with his fist. Complainant never stated that respondent kicked him, and respondent’s testimony that he was wearing sneakers on the day of the indictment stands uncontradicted. Since there is no support in the record for the Family Court’s felony finding, we accordingly reduce the finding to the lesser included misdemeanor offense of third degree assault, a result which was foreshadowed in the prosecutor’s opening statement.

Contrary to the dissent, we cannot find that the hearing court abused its discretion to preclude the efforts of respondent’s counsel to cross-examine complainant upon the pretrial identification procedures in which the complainant participated. Respondent’s right to a Wade hearing had been waived by the failure of his counsel to move for this relief for a period of 2Vi months, and the court properly held that the issue was foreclosed by the time of trial. And, while it was error for the hearing court to receive complainant’s testimony as to his *766selection of respondent’s photograph from an array, the error must be viewed as harmless since an experienced Trial Judge, and not a jury, constituted the tribunal. With respect to the main line of defense asserted by respondent, namely, misidentification of respondent by complainant, we note that complainant’s in-court identification was unequivocal, and we must defer to the conclusion reached by the trier of fact who saw and heard the two conflicting witnesses on this aspect of the case. Concur—Kupferman, J. P., Sullivan, Asch and Wallach, JJ.