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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSE RODRIGUEZ, Appellant.

Ordered that the judgment is affirmed.

The defendant was involved in a confrontation between two groups of youths which resulted in one youth's wounding as a result of a shotgun blast.

The defendant's contention that he was denied the right to confront witnesses at the Wade hearing, thus violating his constitutional rights, is without merit. Evidence indicates that the defendant was known to the People's three witnesses prior to the crime, and thus the identification procedure was "`merely confirmatory'" (People v Johnson, 124 A.D.2d 748, 749; People v May, 122 A.D.2d 168). Although generally, a defendant should be permitted to examine witnesses at a Wade hearing regarding the circumstances surrounding the identification procedure (see, People v Ocasio, 134 A.D.2d 293), at bar, the defendant did not call witnesses when he had the opportunity to do so at the hearing.

The defendant's contentions respecting prosecutorial misconduct are either unpreserved for our review or without merit. It is well settled that a prosecutor, in summation, is permitted fair response to defense counsel's summation (see, People v Anthony, 24 N.Y.2d 696; People v Seldon, 128 A.D.2d 742; People v Oakley, 114 A.D.2d 473), which is what occurred in this case.

We have reviewed the defendant's remaining contentions and find them without merit. Thompson, J.P., Kunzeman, Spatt and Balletta, JJ., concur.

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PEOPLE v. RODRIGUEZ
(Feb 27, 1989)