MEMORANDUM.
The order of the Appellate Division should be reversed and a new trial ordered.
The Grand Jury testimony of an eyewitness to the crime, which identified defendant as one of the perpetrators, did not fall within the classes of prior testimony rendered admissible in criminal proceedings by CPL 670.10. Inasmuch as the statute's "three carefully worded and enumerated exceptions" are exclusive (People v Harding, 37 N.Y.2d 130, 134; see, People v Ayala, 75 N.Y.2d 422, 429), the trial court erred in allowing the witness' prior testimony to be admitted as evidence-in-chief against the defendant. Under the circumstances of this case, in which identification was the central issue, we cannot conclude that the error was harmless.
Chief Judge WACHTLER and Judges SIMONS, KAYE, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum; Judge ALEXANDER dissents and votes to affirm in an opinion.
Order reversed, etc.
ALEXANDER, J. (dissenting).
While I agree with the majority that the admission of the Grand Jury testimony of an eyewitness to the crime was error, I am persuaded, as was the Appellate Division, that the error was harmless. The testimony of that witness was not the sole identification of the defendant as one of the perpetrators. Indeed, the son of the victim who was present at the time of the incident clearly and unequivocally identified defendant as one of the assailants.
As noted by the Appellate Division, that and other testimony which confirmed the "relationship among the men involved in the killing provided powerful and conclusive evidence of defendant's guilt. [The Grand Jury testimony of the other eyewitness] was merely cumulative and, thus, there was no `significant probability' that its admission resulted in defendant's conviction. (People v Crimmins, 36 N.Y.2d 230, 242.)" (People v Green, 159 A.D.2d 432, 433.) Thus, there should be an affirmance.