Opinion
April 18, 1994
Appeal from the County Court, Westchester County (Scarpino, J.).
Ordered that the matter is remitted to the County Court, Westchester County, to hear and report on that branch of the defendant's omnibus motion which was to suppress identification evidence, and the appeal is held in abeyance in the interim; the County Court, Westchester County, shall file its report with all convenient speed.
We conclude that the denial, without a hearing, of the defendant's application for a Wade hearing with respect to the proposed identification testimony of the undercover officer was improper. The record indicates that the undercover officer viewed a single photograph of the defendant at the station house on June 8, 1988, and identified him as the individual from whom he had previously purchased cocaine on May 31, and June 1, 1988. Two days thereafter, on June 10, 1988, the defendant was arrested, after allegedly selling additional drugs to certain private individuals.
It cannot be said as a matter of law that the photographic identification here was the type of confirmatory procedure not "ordinarily burdened or compromised by forbidden suggestiveness" (People v Wharton, 74 N.Y.2d 921, 922). Unlike the typical buy-and-bust scenario, the identification here occurred approximately one week after the last of two alleged face-to-face transactions between the undercover officer and the defendant, and the arrest did not occur for two days thereafter. Because there were no further details about the identification in the record, one could not determine whether the time lapses were significant under the circumstances of this case, so that it would be improper to classify the procedure as merely confirmatory rather than for identification purposes (see, People v Newball, 76 N.Y.2d 587; People v Gordon, 76 N.Y.2d 595; People v Waring, 183 A.D.2d 271). Accordingly, summary denial of the defendant's application for a Wade hearing was improper. We remit the matter to the hearing court to determine whether the viewing of the photograph was merely confirmatory or an improper identification procedure, and the appeal is held in abeyance in the interim (see, People v Rodriguez, 79 N.Y.2d 445; People v Harewood, 184 A.D.2d 657; cf., People v Burts, 78 N.Y.2d 20).
We reach no other issues at this juncture. Thompson, J.P., Rosenblatt, Miller and Ritter, JJ., concur.