| People v Redding |
| 2009 NY Slip Op 06450 [65 AD3d 1059] |
| September 8, 2009 |
| 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,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial(DiMango, J.), without a hearing, of that branch of the defendant's omnibus motion which was tosuppress identification testimony. By decision and order dated January 29, 2008, this Courtremitted the matter to the Supreme Court, Kings County, to hear and report on that branch of thedefendant's omnibus motion which was to suppress identification testimony, and held the appealin abeyance in the interim (see People vRedding, 47 AD3d 953 [2008]). The Supreme Court, Kings County (DiMango, J.), hasnow filed its report. Justices Covello, Lott, and Austin have been substituted for formerAssociate Justice Ritter and Associate Justices Carni and McCarthy.
Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibusmotion which was to suppress identification testimony is granted, and a new trial is ordered, tobe preceded by a hearing to determine whether an independent source for the identificationexists.
That branch of the defendant's omnibus motion which was to suppress identificationtestimony should have been granted. The alleged photocopy of the photographic array admittedinto evidence at the hearing and the testimony concerning the array failed to provide a sufficientbasis to overcome any inference that the array was suggestive (cf. People v Morciglio, 29 AD3d710, 711 [2006]; People vColeman, 2 AD3d 1045, 1046 [2003]).
In light of our determination, we need not reach the defendant's remaining contentions.Spolzino, J.P., Covello, Lott and Austin, JJ., concur.