Opinion
June 6, 1996
Appeal from the Family Court, New York County (Sara Schechter, J.).
The victim's out-of-court identification of respondent, given as evidence in chief pursuant to Family Court Act § 343.3, should have been the subject of a Wade hearing, since it took place while the victim and police were canvassing the crime area, and the presentment agency did not establish, as a matter of law, that the identification was free from the risk of police suggestion ( People v. Dixon, 85 N.Y.2d 218, 220). The presentment agency's argument that Dixon should not be applied retroactively is contrary to its own previously stated position in this regard ( Matter of Jonitta C., 214 A.D.2d 379), at least one District Attorney's stated position ( People v. Corchado, 225 A.D.2d 560), and a Court of Appeals precedent, coming out of this Department, that applied Dixon retroactively, apparently without argument ( People v. Brown, 86 N.Y.2d 728).
Concur — Milonas, J.P., Rosenberger, Ross and Tom, JJ.