90 N.Y.2d 803 (1997)

A defendant is not automatically entitled to call the complainant to testify at a Wade hearing absent a showing of a substantial constitutional question as to the suggestiveness of the lineup procedure; an assault charge requiring proof of serious physical injury in furtherance of another felony is not an inclusory concurrent count of a robbery charge that does not require such proof.

Summary

Wilson appealed his convictions for robbery and assault, arguing that the trial court erred in denying his request to call the complainant to testify at the Wade hearing and that his assault conviction was an inclusory concurrent count of his robbery conviction. The New York Court of Appeals affirmed the Appellate Division’s order upholding the convictions, holding that Wilson failed to demonstrate a substantial constitutional question warranting the complainant’s testimony at the Wade hearing and that the assault charge contained an element not required for the robbery charge, thus not qualifying as an inclusory concurrent count.

Facts

The defendant was convicted of robbery in the first degree and assault in the first degree. Prior to trial, the defendant requested a Wade hearing to challenge the admissibility of the complainant’s lineup identification. He argued that a “wanted” poster containing a sketch created by the complainant and a police artist may have tainted the lineup identification because the complainant may have seen it before the lineup. The trial court denied the defendant’s request to call the complainant to testify at the Wade hearing.

Procedural History

The trial court convicted the defendant of robbery in the first degree and assault in the first degree. The Appellate Division affirmed the convictions. The defendant appealed to the New York Court of Appeals, arguing the Wade hearing denial and that the assault conviction was an inclusory concurrent count. The Court of Appeals affirmed the Appellate Division’s order.

Issue(s)

1. Whether the trial court abused its discretion in denying the defendant’s request to call the complainant to testify at the Wade hearing.
2. Whether the defendant’s conviction for assault in the first degree was an inclusory concurrent count of his conviction for robbery in the first degree.

Holding

1. No, because the hearing evidence revealed no substantial constitutional question as to the suggestiveness of the lineup that would necessitate the complainant’s testimony.
2. No, because the assault charge required the infliction of serious physical injury “in furtherance of” the underlying felony (here, the robbery), an element not required by the robbery charge.

Court’s Reasoning

Regarding the Wade hearing, the Court of Appeals cited People v. Chipp, 75 N.Y.2d 327, 337-338 (1990), noting that the defendant failed to lay a foundation for his claim that the complainant’s viewing of the