Smith, J., dissents in a memorandum as follows: I would reverse this case and remand for either a fact-finding hearing or, in view of respondent’s age, a dismissal of the petition because of prejudicial errors committed with respect to the identification of the respondent.
The complainant was severely injured, particularly with respect to his eye and face, when a group of teen-agers beat him as he was walking east on 50th Street from 9th Avenue towards 8th Avenue on January 17, 1985 at about 11:45 a.m. The petition, dated August 14, 1985, alleged that respondent was a juvenile delinquent in that on or about January 17, 1985, he committed acts which, if committed by an adult, would constitute assault in the second degree and attempted assault in the second degree. The first count of the petition alleged that respondent violated Penal Law § 120.05 (2) in that he, "with intent to cause physical injury to [the complainant] caused physical injury to [the complainant] by means of a dangerous instrument, to wit Boot.” The second count of the petition alleged a violation of Penal Law §§ 110.00, 120.05 (1) in that respondent "with intent to cause serious physical injury to [the complainant] attempted to cause such injury to [the complainant].”
First, the allegations of the petition were not proved beyond a reasonable doubt. Respondent was not charged with acting in concert with others. The complainant testified that the only action which he saw respondent take against him was a blow to his face with the respondent’s fist. Subsequently, the complainant was beaten and kicked by members of the group. There was no evidence that respondent used a boot.
Second, at the fact-finding hearing, not only was photographic evidence improperly admitted (see, People v Griffin, 29 NY2d 91 [1971]; People v Black, 117 AD2d 512 [1986]), but also respondent was precluded from questioning the complaining witness about the photographic and lineup identification. (See, *767People v Ruffino, 110 AD2d 198 [1985].) Identification was the major issue at the fact-finding hearing. Cross-examination was particularly important since the court had refused to grant a pretrial identification hearing. Respondent does not now press his claim for an identification hearing, seeking rather a new trial because he was unable to question the complainant on the lineup identification. Even though the case was tried before a Judge rather than a jury, respondent should have been allowed to cross-examine the complainant on his lineup identification of the respondent.