Opinion
October 29, 1992
Appeal from the Supreme Court, New York County (Jay Gold, J.).
The evidence at the suppression hearing concerning the procedures used by the police in having two witnesses identify defendant from photographs indicated that each witness independently identified defendant from a non-suggestive photo array. While the testimony left open the possibility that the second witness, who had known defendant previously, saw a signed statement by the first witness concerning his identification of defendant's photograph, this did not occur, if at all, until after the second witness had actually made his identification. Under these circumstances, defendant did not have an unqualified right to call the two witnesses to testify at the hearing (People v Chipp, 75 N.Y.2d 327, 337-338, cert denied 498 U.S. 833). Defendant's reliance on People v Ocasio ( 134 A.D.2d 293) is misplaced, as that case concerned police procedures which left open the possibility of communication between eyewitnesses before they had all actually made an identification.
Concur — Milonas, J.P., Rosenberger, Ellerin and Rubin, JJ.