Opinion
November 29, 1993
Appeal from the Supreme Court, Kings County (Broomer, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
We find that the trial court erred by permitting a witness to testify as to his prior identification of the defendant. The People's eyewitness initially testified that he identified Mark Cover as the perpetrator at the scene of the incident. However, when asked to make an in-court identification, the witness stated that the defendant was not the shooter. CPL 60.25 permits a witness to relate his or her own prior identification of the defendant when he or she is "unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question" (CPL 60.25 [a] [iii]; see, People v Quevas, 81 N.Y.2d 41, 42-43; People v Johnson, 75 N.Y.2d 856, 857-858; People v Bayron, 66 N.Y.2d 77, 81). Here, the witness did not state that he was unable to identify the defendant because of deficient recollection, but rather, affirmatively testified that the defendant was not the shooter. Under these circumstances, CPL 60.25 does not apply "since the witness was able to state `whether or not the defendant is the person in question' on the basis of his present recollection (CPL 60.25 [a] [iii])" (People v Rodriguez, 169 A.D.2d 618, 619).
Additionally, we note that the identification in question was not merely confirmatory (see, People v Wharton, 74 N.Y.2d 921), nor was there any indication that the witness knew the defendant (see, People v Rodriguez, 79 N.Y.2d 445). Therefore, the court erred in summarily denying the defendant's motion to suppress identification testimony without a hearing (see, People v Lawhorn, 192 A.D.2d 359). Bracken, J.P., Rosenblatt, Copertino and Pizzuto, JJ., concur.