Opinion
February 19, 1968
Judgment of the Supreme Court, Queens County, rendered August 12, 1966, reversed, on the law, and new trial ordered. No questions of fact were considered. In our opinion, the record establishes that the pretrial identification procedure used in this case was unnecessarily and prejudicially suggestive ( United States v. Wade, 388 U.S. 218) and the new trial should be untainted by any testimony regarding it ( Palmer v. Peyton, 359 F.2d 199, 202-203). The testimony of Detective Callaghan as to prior identifications by witnesses Lay and Harraen was also improper ( People v. Caserta, 19 N.Y.2d 18; People v. Trowbridge, 305 N.Y. 471). There is insufficient testimony in this record to enable us to determine whether the statements made by appellant to Detective Callaghan in the police station were elicited by interrogation after his request for counsel had been refused ( People v. Sanchez, 15 N.Y.2d 387, 389). Christ, Acting P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.