Summary
In People v. Davis (100 A.D.2d 518, conviction revd on later appeal 118 A.D.2d 866, supra), the Second Department held an appeal in abeyance and remanded the case to the trial court for a reopened Wade hearing.
Summary of this case from People v. PeterkinOpinion
March 5, 1984
Appeal by defendant from a judgment of the Supreme Court Kings County (Kay, J.), rendered October 15, 1981, convicting him of robbery in the first degree and criminal use of a firearm in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of defendant's motion to suppress identification testimony. ¶ Case remitted to Criminal Term for further proceedings consistent herewith, and appeal held in abeyance in the interim. Criminal Term shall file its report with all convenient speed. ¶ At a Wade hearing, Criminal Term denied defendant's request to call the complainant as a witness with respect to whether he had seen defendant in custody at the precinct prior to the exhibition of a photo array and lineup. On the record before us, we cannot say the request, insofar as it related to a potential taint in the identification process, was made in palpably bad faith. Accordingly, the court improperly denied the application ( People v Gilliam, 37 N.Y.2d 722, revg 45 A.D.2d 744 on dissenting opn. of Hopkins, J.; People v Murray, 79 A.D.2d 993). Thus, the Wade hearing must be reopened to receive testimony relevant to the issue of potential taint. Lazer, J.P., Niehoff, Boyers and Lawrence, JJ., concur.