People v. McGilvary

May 27, 1994
Versions:204 A.D.2d 1043
613 N.Y.S.2d 309
1994 N.Y. App. Div. LEXIS 13721

—Judgment unanimously affirmed. Memorandum: Defendant contends that the suppression court erred in granting the People’s motion to reopen the Wade hearing to receive evidence from two confidential informants on the issues whether pretrial identification procedures were unduly suggestive and whether there were independent bases for the informants’ in-court identifications of defendant. We agree that the suppression court erred in reopening the Wade hearing (see, People v Havelka, 45 NY2d 636, 643). Reversal is not required, however, because defendant was not prejudiced by the error (see, People v Hall, 177 AD2d 951, Iv denied 79 NY2d 948; People v Lathrop, 127 AD2d 1003). The deputy sheriffs who conducted the photographic array and line-up testified at the initial Wade hearing, where the identification procedures they employed were fully explored. Thus, the evidence adduced at the initial hearing supported the suppression court’s determination that the photographic array and line-up procedures insofar as they related to the confidential informants were not impermissibly suggestive. Additionally, that evidence supported the court’s determination that the line-up procedure involving Deputy Soto was impermissibly suggestive, but that the deputy had an independent basis for his in-court identification of defendant. Consequently, the testimony adduced at the reopened Wade hearing was not necessary to support the determination of the suppression court, and therefore did not result in prejudice to defendant (see, People v Lathrop, supra).

Furthermore, the trial court properly admitted the identification testimony of the confidential informants because the photographic array and line-up procedures were not impermissibly suggestive (see, People v Stanley, 201 AD2d 943; People v Guido, 198 AD2d 809, 810, lv denied 83 NY2d 805; People v Dean, 155 AD2d 868, lv denied 75 NY2d 812; see generally, People v Rahming, 26 NY2d 411). Finally, the identification testimony of Deputy Soto was properly admitted at trial because there was an independent basis for his in-court identification of defendant (see, People v Adams, 53 NY2d 241, 251; People v Di Girolamo, 197 AD2d 531; People v Brooks, 190 AD2d 1033, lv denied 81 NY2d 882). (Appeal from Judgment of Wayne County Court, Strobridge, J.—Criminal Sale Controlled Substance, 3rd Degree.) Present—Denman, P. J., Fallon, Wesley, Davis and Boehm, JJ.