| People v Adams |
| 2013 NY Slip Op 03226 [106 AD3d 1496] |
| May 3, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vMarquil L. Adams, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang,J.), rendered November 29, 2010. The appeal was held by this Court by order enteredJune 15, 2012, decision was reserved and the matter was remitted to Supreme Court, ErieCounty, for further proceedings (96 AD3d 1588 [2012]). The proceedings were held andcompleted.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted to be preceded by a new hearing on defendant's motionto suppress identification testimony.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of robbery in the first degree (Penal Law § 160.15 [4]) and robbery in thesecond degree (§ 160.10 [1]). We previously held the case, reserved decision, andremitted the matter to Supreme Court to determine whether testimony concerning thepretrial identification by the robbery victim from a photo array should be suppressed asthe fruit of an illegal detention or arrest (People v Adams, 96 AD3d 1588, 1589[2012]). Upon remittal, the court concluded that the victim's pretrial identification shouldbe suppressed as the fruit of an illegal detention or arrest. Inasmuch as the identificationof defendant by the victim was critical to the prosecution and there was no evidence atthe suppression hearing to permit a determination whether the in-court identification hadan independent source, defendant is "entitled to a new trial to be preceded by a hearing asto whether there was an independent basis for the identification testimony of the [robberyvictim]" (People v Fletcher, 115 AD2d 293, 294-295 [1985]; see People vCoates, 74 NY2d 244, 250 [1989]; People v Dodt, 61 NY2d 408, 417[1984]).
Contrary to defendant's contention, he is not entitled to dismissal of the indictment(see Dodt, 61 NY2d at 418). Defendant failed to preserve for our review hisfurther contention that certain other evidence should have been suppressed as the allegedfruit of his illegal detention or arrest (see generally People v Watson, 90 AD3d 1666, 1667[2011], lv denied 19 NY3d 868 [2012]), and we decline to exercise our power toreview that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
Finally, we do not address the People's contention that the court's determination upon[*2]remittal was erroneous and that the conviction shouldbe affirmed. "CPL 470.15 (1) limits our jurisdiction to a determination of any question oflaw or issue of fact involving error which may have adversely affected the appellant.Since we are reviewing a judgment on the defendant's appeal, and the issue of whetherthe [identification testimony was the fruit of an illegal detention or arrest] was notdecided adversely to him, we are jurisdictionally barred from considering that issue" (People v Harris, 93 AD3d58, 66 [2012], affd 20 NY3d 912 [2012]; see People v Concepcion, 17NY3d 192, 195 [2011]). Present—Smith, J.P., Fahey, Peradotto, Sconiers andMartoche, JJ.