Opinion
March 4, 1996
Appeal from the Supreme Court, Kings County (Barasch, 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 the identification testimony of Sergio Alvarez and Hector Toste, and the appeal is held in abeyance in the interim; the Supreme Court, Kings County, is to file its report with all convenient speed.
The People concede, and we agree, that it was error to summarily deny the defendant's request for a Wade hearing with respect to witnesses Sergio Alvarez and Hector Toste. A canvas of a crime area with Alvarez in the police car, during which Alvarez spotted the defendant, was an "identification procedure undertaken at the `deliberate direction of the State'" ( People v Dixon, 85 N.Y.2d 218, 223, citing CPL 710.30). Consequently, the suppression court's summary denial of the defendant's request for a Wade hearing to inquire into the circumstances surrounding Alvarez's identification was improper ( see, People v Dixon, supra, at 220). In addition, the so-called "point-out" identification of the defendant made by Toste, which took place when he observed the defendant in the rear seat of a police vehicle, does not fit into the category of confirmatory viewings which are recognized as exceptions to the general requirement of a Wade hearing ( see, People v Dixon, supra, at 223-224; People v Wharton, 74 N.Y.2d 921).
There is, however, no need to conduct a Wade hearing with respect to the identification of the defendant by the witness Anthony Porter since the record establishes that the defendant and this witness were previously known to one another ( see, People v Dixon, supra; People v Gissendanner, 48 N.Y.2d 543). O'Brien, J.P., Copertino, Santucci and Krausman, JJ., concur.