Opinion
June 28, 1990
Appeal from the Supreme Court, New York County (Leslie Crocker Snyder, J.).
Defendant contends, and we agree, that Supreme Court erred when it denied his motion for a Wade hearing. Supreme Court should have conducted a hearing, which we note was repeatedly requested, in order to resolve the question of whether the postarrest station house viewing of defendant by undercover Officer Nelson Cortes constituted an improper identification procedure or was merely a confirmatory identification. As the Court of Appeals recently stated in People v. Wharton ( 74 N.Y.2d 921, 923), there is "no categorical rule exempting from requested Wade hearings confirmatory identifications by police officers by merely labeling them as such".
This court is well aware that, as a general matter, police officers are considered to have a recognized expertise in identification matters. (People v. Morales, 37 N.Y.2d 262, 271-272; People v. Wharton, 74 N.Y.2d, supra, at 923; People v. Baron, 159 A.D.2d 710, 711 [2d Dept 1990].) However, the facts in the case at bar cannot be said to rule out a reasonable possibility that Cortes' in-court identification of defendant may have been influenced by the showup identification which was conducted after defendant's arrest, some six days after the officer had allegedly last seen him. (See, e.g., People v. Baron, supra [one week]; People v. Rubio, 118 A.D.2d 879, 880-881 [2d Dept 1986], revd after remand 133 A.D.2d 475 [2d Dept 1987] [27 days]; compare, People v. Perez, 74 N.Y.2d 637, 638 [police identification of defendant from mug shot, based upon observation at time of crime, held not to be a proper confirmatory identification].) Of particular concern to us is the discrepancy between the description Cortes gave of the suspect and the defendant's actual appearance. (See, People v. Williams, 79 A.D.2d 929 [1st Dept 1981], appeal dismissed 53 N.Y.2d 866.) Cortes, in his report, described the suspect, "J.D. Door" as 5 feet, 8 inches in height and 155 pounds in weight; in stark contrast, defendant is 6 feet tall, as is Cortes, and weighs some 180 pounds. Thus, a Wade hearing is required so that it can be determined whether Cortes' station house identification was suggestive.
Concur — Ross, J.P., Carro, Wallach and Rubin, JJ.