32 A.D.2d 822 | N.Y. App. Div. | 1969
Appeal from a judgment of the County Court, Westchester County, rendered July 12, 1967, convicting defendant of sodomy and rape, both in the first degree, and other crimes, after a nonjury trial, and imposing sentence. Judgment affirmed. No opinion. Beldock, P. J., Christ, Brennan and Rabin, JJ., concur; Hopkins, J., dissents and votes to modify the judgment to the extent of remitting the action to the trial court for a hearing in accordance with the following memorandum: In my opinion, the “ show-up ” procedure at bar is essentially indistinguishable from that condemned in People v. Hill (22 N Y 2d 686) and therefore this action should be remitted to the trial court for a hearing wherein the People should be required to prove by clear and convincing evidence that the trial ‘identification of defendant by the female he is alleged to have raped and sodomized was not tainted by the improper “ show-up ” (People v. Hill, supra, p. 688; Wall, Eye-Witness Identification in Criminal Cases, pp. 27-40).
