Opinion
February 14, 1995
Appeal from the Family Court, Kings County (Hepner, J.).
Ordered that the matter is remitted to the Family Court, Kings County, to hear and report on the branch of the appellant's omnibus motion which was to suppress identification testimony, and the appeal is held in abeyance in the interim. The Family Court, Kings County, is to file its report with all convenient speed.
As conceded by the People, and we agree, it was error to deny the branch of the appellant's omnibus motion which sought suppression of the identification testimony without first conducting a hearing. The appellant's motion papers were sufficient under Family Court Act § 330.2 and CPL 710.60 (1) to entitle him to a hearing on the issue, particularly since the People did not dispute that a showup identification procedure had been conducted. Under these circumstances, summary denial of the branch of the appellant's omnibus motion which was to suppress the identification testimony was improper, and a hearing on the admissibility of the identification testimony must be conducted (see, People v. Vitetta, 118 A.D.2d 885). Sullivan, J.P., Miller, Copertino, Joy and Friedmann, JJ., concur.