Opinion
May 27, 1994
Appeal from the Wayne County Court, Strobridge, J.
Present — Denman, P.J., Fallon, Wesley, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that the suppression court erred in granting the People's motion to reopen the Wade hearing to receive evidence from two confidential informants on the issues whether pretrial identification procedures were unduly suggestive and whether there were independent bases for the informants' in-court identifications of defendant. We agree that the suppression court erred in reopening the Wade hearing (see, People v. Havelka, 45 N.Y.2d 636, 643). Reversal is not required, however, because defendant was not prejudiced by the error (see, People v. Hall, 177 A.D.2d 951, lv denied 79 N.Y.2d 948; People v. Lathrop, 127 A.D.2d 1003). The deputy sheriffs who conducted the photographic array and line-up testified at the initial Wade hearing, where the identification procedures they employed were fully explored. Thus, the evidence adduced at the initial hearing supported the suppression court's determination that the photographic array and line-up procedures insofar as they related to the confidential informants were not impermissibly suggestive. Additionally, that evidence supported the court's determination that the line-up procedure involving Deputy Soto was impermissibly suggestive, but that the deputy had an independent basis for his in-court identification of defendant. Consequently, the testimony adduced at the reopened Wade hearing was not necessary to support the determination of the suppression court, and therefore did not result in prejudice to defendant (see, People v. Lathrop, supra).
Furthermore, the trial court properly admitted the identification testimony of the confidential informants because the photographic array and line-up procedures were not impermissibly suggestive (see, People v. Stanley, 201 A.D.2d 943; People v. Guido, 198 A.D.2d 809, 810, lv denied 83 N.Y.2d 805; People v. Dean, 155 A.D.2d 868, lv denied 75 N.Y.2d 812; see generally, People v. Rahming, 26 N.Y.2d 411). Finally, the identification testimony of Deputy Soto was properly admitted at trial because there was an independent basis for his in-court identification of defendant (see, People v. Adams, 53 N.Y.2d 241, 251; People v. Di Girolamo, 197 A.D.2d 531; People v. Brooks, 190 A.D.2d 1033, lv denied 81 N.Y.2d 882).