| People v Redding |
| 2008 NY Slip Op 00721 [47 AD3d 953] |
| January 29, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v SeanRedding, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Rhea A. Grob ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.),rendered January 14, 2004, convicting him of attempted assault in the first degree, criminalpossession of a weapon in the second degree, and reckless endangerment in the first degree, upona jury verdict, and imposing sentence. The appeal brings up for review the denial, without ahearing (DiMango, J.), of that branch of the defendant's omnibus motion which was to suppressidentification testimony.
Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and reporton that branch of the defendant's omnibus motion which was to suppress identification testimonyand, more particularly, whether the photographic identification was merely confirmatory innature, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, is tofile its report with all convenient speed.
In his omnibus motion, the defendant sought, inter alia, to suppress identification testimonyby the complaining witness on the ground that a photographic identification by the witness wasimpermissibly suggestive. The Supreme Court denied the motion, without a hearing, on theground that the witness knew the defendant and therefore the identification was merelyconfirmatory. The Supreme Court erred in denying the defendant's motion without a hearing(see People v Rodriguez, 79 NY2d 445 [1992]; People v Williamson, 79 NY2d799 [1991]). Therefore, we remit the matter to the Supreme Court for a hearing to determinewhether the photographic identification was merely confirmatory [*2]in nature (see People v Rodriguez, 79 NY2d at 453). Sinceno determination has been made that the police employed a suggestive identification procedure,the appeal may be held in abeyance for a posttrial hearing with respect to this issue (seePeople v Thomas, 225 AD2d 641 [1996]; People v Thornton, 222 AD2d 537, 539[1995]; People v Bryan, 206 AD2d 434, 435-436 [1994]; People v Cinatus, 188AD2d 481, 482 [1992]). In light of this determination, we decide no other issues at this time.Spolzino, J.P., Ritter, Carni and McCarthy, JJ., concur.