Opinion
March 11, 1996
Appeal from the Supreme Court, Kings County (R. Goldberg, 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 identification testimony, 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 wholly failed to satisfy their burden of establishing that the identification procedure by which the victims of the subject robbery identified the defendant was merely confirmatory in nature (see, People v Rodriguez, 79 N.Y.2d 445, 452; People v Cinatus, 188 A.D.2d 481). Therefore, under the circumstances of this case, the Supreme Court erred in summarily denying the defendant's motion to suppress the victim's identification testimony (see, CPL 710.60). However, since no determination has been made that the police employed an unduly suggestive identification procedure, the appeal may be held in abeyance for a post-judgment hearing (see, People v Bryan, 206 A.D.2d 434; People v Cinatus, supra; People v Harewood, 184 A.D.2d 657). Balletta, J.P., O'Brien, Copertino and Pizzuto, JJ., concur.