Opinion
June 15, 1992
Appeal from the Supreme Court, Westchester County (Rosato, J.).
Ordered that the matter is remitted to the Supreme Court, Westchester County, to hear and report on that branch of the defendant's omnibus motion which was to suppress identification testimony, and the appeal is held in abeyance in the interim. The Supreme Court, Westchester County, is to file its report with all convenient speed.
In his omnibus motion, the defendant sought, inter alia, to suppress identification testimony by an undercover police officer on the ground that two photographic identifications by the officer were impermissibly suggestive. The People maintained that no hearing was required because the identifications were made as part of an investigation and were confirmatory. We find that the court erred in denying the defendant's motion without a hearing (see, People v. Rodriguez, 79 N.Y.2d 445; see, e.g., People v Hayes, 162 A.D.2d 410; People v. Baron, 159 A.D.2d 710; see generally, People v. Wharton, 74 N.Y.2d 921). We therefore remit the matter to the trial court for a hearing to determine whether the viewing of the photographs was an improper identification procedure or was merely confirmatory in nature. Since no determination has been made that the police employed a suggestive identification procedure, the appeal may be held in abeyance for a posttrial hearing (see, People v. Williams, 182 A.D.2d 490; cf., People v. Burts, 78 N.Y.2d 20).
We reach no other issues at this juncture. Lawrence, J.P., Eiber, O'Brien and Copertino, JJ., concur.