| People v Coleman |
| 2009 NY Slip Op 02622 [60 AD3d 1079] |
| March 31, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sherrod Coleman, 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 (McKay, J.),rendered March 2, 2006, convicting him of robbery in the third degree and menacing in thesecond degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, without a hearing, of that branch of the defendant's omnibus motion which was tosuppress identification 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 identifications were merely confirmatory innature and, if not, whether the photographic identification procedures employed were undulysuggestive, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County,is to file its report with all convenient speed.
Prior to trial, the complaining witness made two photographic identifications of thedefendant. In his omnibus motion, the defendant sought, inter alia, to suppress the complainingwitness's identification testimony on the ground that these identifications were made underimpermissibly suggestive circumstances. However, the People, essentially asserting that theidentifications were merely confirmatory, contended that this branch of the motion should bedenied without a hearing. In support of their assertion, the People provided a portion of thetranscript of the grand jury proceedings, reflecting that the complaining [*2]witness testified that, approximately three months before thealleged robbery, he began seeing the defendant "regularly," in that "every other day," thedefendant would "walk[ ] up and down the block" where the complaining witness lived. TheSupreme Court, finding that the complaining witness had sufficient "familiarity" with thedefendant so as to render a hearing "unnecessary," denied, without a hearing, that branch of thedefendant's omnibus motion which was to suppress the complaining witness's identificationtestimony.
Under the circumstances, the People, relying on testimony "untested by cross-examination,"failed to meet their burden of establishing that the complaining witness knew the defendant "sowell as to be impervious to police suggestion" (People v Rodriguez, 79 NY2d 445, 451,452 [1992]; see People v Williamson, 79 NY2d 799, 800-801 [1991]). Accordingly, theSupreme Court erred in denying, without a hearing, that branch of the defendant's omnibusmotion which was to suppress the complaining witness's identification testimony (see Peoplev Rodriguez, 79 NY2d at 453; People v Williamson, 79 NY2d at 800-801), and weremit the matter to the Supreme Court, Kings County, for a hearing to determine whether thephotographic identifications were merely confirmatory in nature, and if not, whether thephotographic identification procedures employed were unduly suggestive (see People vRodriguez, 79 NY2d at 453; People v Williamson, 79 NY2d at 801; People vThornton, 222 AD2d 537, 539 [1995]). Accordingly, the appeal must be held in abeyancefor a posttrial hearing with respect to these issues (see People v Redding, 47 AD3d 953[2008]; People v Thornton, 222 AD2d at 539; People v Bryan, 206 AD2d 434[1994]).
In light of our determination, we decide no other issues at this time. Mastro, J.P., Covello,Eng and Leventhal, JJ., concur.