| People v Pena |
| 2015 NY Slip Op 06681 [131 AD3d 708] |
| August 26, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Pena, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner and Mark W. Vorkink ofcounsel), for appellant, and appellant pro se.
Daniel L. Master, Jr., Acting District Attorney, Staten Island, N.Y. (Morrie I.Kleinbart and Paul M. Tarr of counsel), for respondent.
Motion by the defendant for leave to reargue an appeal from a judgment of theSupreme Court, Richmond County, rendered July 19, 2012, which was determined bydecision and order of this Court dated December 10, 2014.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, it is
Ordered that the motion is granted and, upon reargument, the decision and order ofthis Court dated December 10, 2014 (People v Pena, 123 AD3d 849 [2014]), is recalled andvacated, and the following decision and order is substituted therefor:
Appeal by the defendant from a judgment of the 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 judgment is reversed, on the law, and a new trial is ordered, to bepreceded by an independent source hearing.
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]).
[*2] The hearing court's erroneous determinationeffectively precluded the People from proffering evidence as to whether there was anindependent source for the complainant's in-court identification. Since the People did nothave an opportunity to establish the existence of an independent source, if any, a newtrial is required, to be preceded by an independent source hearing (see People v Wilson, 5 NY3d778, 780 [2005]; People v Burts, 78 NY2d 20 [1991]; People v Robinson, 123 AD3d1062, 1063 [2014]).
The defendant's remaining contentions need not be reached in light of ourdetermination. Dillon, J.P., Chambers, Cohen and Maltese, JJ., concur.