Opinion
July 11, 1994
Appeal from the Supreme Court, Kings County (Juviler, J.).
Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on that branch of the defendant's omnibus motion which was to suppress identification testimony, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, is to file its report with all convenient speed.
In his omnibus motion, the defendant sought, inter alia, to suppress identification testimony by five citizen-witnesses on the ground that photographic identifications by the witnesses were impermissibly suggestive. The People submitted a reply in which they opposed a Wade hearing on the ground that the identifications were confirmatory, merely alleging that "the witnesses knew defendant by the street name `Bullet'". At a subsequent pretrial conference, the prosecutor further maintained that a Wade hearing was unnecessary because the witnesses knew the defendant by nickname as a person "in the project area for some time". The court summarily denied a Wade hearing, reasoning that "[t]he parties were known to each other".
The court erred in denying the defendant's motion without a hearing, inasmuch as the People's allegations were insufficient to demonstrate that the photographic identifications were merely confirmatory in nature (see, People v. Rodriguez, 79 N.Y.2d 445; see, e.g., People v. Lawhorn, 192 A.D.2d 359; People v. Cinatus, 188 A.D.2d 481; People v. Bernard, 188 A.D.2d 348; People v Harewood, 184 A.D.2d 657). Furthermore, to the extent which the People presently attempt to rely on the Grand Jury testimony of two eyewitnesses to support their claim that the identifications were confirmatory, we note that such reliance is inappropriate (see, People v. Grajales, 175 A.D.2d 293; People v. Johnson, 148 A.D.2d 304; People v. Pavesi, 144 A.D.2d 392; People v. Werner, 55 A.D.2d 317). In any event, even if we were to accept that testimony, it would not demonstrate that the three remaining witnesses who did not testify before the Grand Jury were so familiar with the defendant as to render them impervious to suggestiveness. Under these circumstances, we conclude that the defendant is entitled to a hearing to explore these issues and conduct cross-examination with respect to all of these witnesses (see generally, People v Williamson, 79 N.Y.2d 799; People v. Rodriguez, supra, at 451). Accordingly, we remit the matter for such a hearing. Since no determination has been made that the police employed a suggestive identification procedure, the appeal may be held in abeyance for a post-judgment hearing (see, People v. Cinatus, supra; People v Harewood, supra; cf., People v. Burts, 78 N.Y.2d 20).
In view of the foregoing, we do not reach the defendant's remaining contention at this juncture. Sullivan, J.P., Pizzuto, Santucci and Friedmann, JJ., concur.