147 A.D.2d 508 | N.Y. App. Div. | 1989
— Appeal by the defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered November 10, 1986, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The
Ordered that the case is remitted to the County Court, Suffolk County, for further proceedings in accordance herewith and the appeal is held in abeyance in the interim. The County Court is to file its report with all convenient speed.
The hearing court erred in concluding that the pretrial identification procedure employed, a photographic array, was not suggestive. The defendant was the only subject pictured in front of a height chart, thereby improperly drawing attention to his photograph, highlighting his height and suggesting his prior involvement with law enforcement officials (see, People v Grate, 130 AD2d 590). The court also erred in finding that the complainants’ in-court identifications had an independent basis, as the complainants did not testify at the suppression hearing (see, People v Riley, 70 NY2d 523, 531). Since the hearing court’s erroneous determinations effectively precluded the People from proffering evidence as to independent source, the matter is remitted to provide them with an opportunity to do so (see, People v Crandall, 69 NY2d 459; People v Dodt, 61 NY2d 408, 417-418). Pending a hearing and determination on that issue, the appeal is held in abeyance.
We pass upon no other issue at this time. Brown, J. P., Lawrence, Kooper and Spatt, JJ., concur.
