Opinion
March 6, 1995
Appeal from the County Court, Westchester County (Pirro, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered, to be preceded by a Wade hearing.
The defendant was arrested on December 4, 1991, in connection with the sale of cocaine to an undercover police officer on July 25, 1991. After making the purchase, the undercover officer returned to his car and radioed a description of the seller to a backup team. Upon receiving the radio communication from the undercover officer, the sergeant who supervised the operation wrote a description of the seller on a piece of paper. The sergeant then stopped the defendant near the scene of the crime, but did not arrest him at that time. He later returned to the precinct, transferred the information from his notes onto a police report, and destroyed the notes.
At trial, the defense counsel moved for a mistrial or for the imposition of a sanction based upon the sergeant's destruction of his notes. The court denied the request.
Under the circumstances of this case, the defendant is entitled to a new trial. The trial court abused its discretion by failing to grant the defendant's request for the imposition of sanctions due to the sergeant's failure to preserve his notes, which were Rosario material (see, People v. Wallace, 76 N.Y.2d 953; People v. Rivas, 184 A.D.2d 794; People v. Smith, 182 A.D.2d 787; People v. Mack, 180 A.D.2d 824; People v. Moss, 176 A.D.2d 826; People v. Gamble, 172 A.D.2d 687; People v. Jackson, 171 A.D.2d 688; People v. Diaz, 169 A.D.2d 776).
The trial court also erred by denying, without a hearing, the defendant's motion to suppress the identification testimony of the undercover officer. On the present record, it cannot be said as a matter of law that the photographic identification of the defendant by the undercover officer was merely confirmatory and not suggestive (see, People v. Smith, 203 A.D.2d 495; People v Harewood, 184 A.D.2d 657; see also, People v. Glover, 191 A.D.2d 582; People v. Waring, 183 A.D.2d 271). Therefore, a Wade hearing should have been held (see, People v. Rodriguez, 79 N.Y.2d 445; People v. Harewood, supra).
The defendant's remaining contention is without merit. Balletta, J.P., Thompson, Joy and Florio, JJ., concur.