Opinion
January 12, 1995
Appeal from the Supreme Court, New York County (Mary McGowan Davis, J.).
At the end of the suppression hearing, Criminal Term found that there was no probable cause for the backup police officer to arrest defendant because the officer, when testifying at the hearing, could not recall the description of the perpetrator radioed to him by the undercover officer. The court therefore suppressed the confirmatory drive-by identification made by the undercover officer as being the fruit of an illegal arrest. However, over defense counsel's objection, the court ruled that the undercover officer's in-court identification would be allowed without a demonstration that he had an independent source, aside from the tainted confirmatory drive-by, for such identification.
Under People v. Gethers ( 207 A.D.2d 260, lv granted 84 N.Y.2d 935 [Simons, J.]), since there is no basis in the suppression hearing testimony for the court to determine whether the undercover officer's in-court identification had a source independent of the drive-by identification that was the fruit of an illegal arrest, the defendant is entitled to a pretrial hearing to determine whether such an independent source exists (People v. Burts, 78 N.Y.2d 20, 23-24).
Concur — Ellerin, J.P., Kupferman, Asch, Nardelli and Tom, JJ.