| People v Pena |
| 2014 NY Slip Op 08667 [123 AD3d 849] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Pena, Appellant. |
[Recalled and vacated, see 131 AD3d 708.]
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner of counsel), for appellant, andappellant pro se.
Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I.Kleinbart and Paul M. Tarr of counsel), for respondent.
Appeal by the defendant from a judgment of Supreme Court, Richmond County(Collini, J., at a trial; Rienzi, J., at sentence), rendered July 19, 2012, convicting him ofassault in the first degree (two counts) and attempted robbery in the first degree, upon ajury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing (Collini, J.), of that branch of the defendant's omnibus motion which was tosuppress identification testimony.
Ordered that the matter is remitted to the Supreme Court, Richmond County, to hearand report on that branch of the defendant's omnibus motion which was to suppressidentification testimony in accordance herewith, and the appeal is held in abeyance in theinterim. The Supreme Court, Richmond County, shall file its report with all convenientspeed.
The hearing court erred in concluding that the pretrial identification procedure, alineup, was not unduly suggestive. The defendant was conspicuously displayed in thatlineup. He was the only lineup participant dressed in a red shirt, the item of clothingwhich figured prominently in the description of the assailant's clothing that thecomplainant gave to the police. Thus, at the lineup, the defendant's red shirt improperlydrew attention to his person (see People v Owens, 74 NY2d 677, 678 [1989];People v Riddick, 251 AD2d 517, 518 [1998]; People v Sapp, 98 AD2d784 [1983]; People v Johnson, 79 AD2d 617 [1980]). Since the hearing court'serroneous determination effectively precluded the People from proffering evidence as towhether there was an independent source for the complainant's in-court identification, weremit the matter to the Supreme Court, Richmond County, to provide them with anopportunity to do so (see Peoplev Coleman, 60 AD3d 1079, 1080 [2009]; People v Ryan, 147 AD2d 508[1989]; see also People v Riley, 70 NY2d 523 [1987]). Pending a hearing anddetermination on that issue, the appeal is held in abeyance.
We decide no other issues at this time. Dillon, J.P., Chambers, Cohen and Maltese,JJ., concur.