People v. Barnes

197 A.D.2d 925, 604 N.Y.S.2d 850, 1993 N.Y. App. Div. LEXIS 9416

Opinion

—Case held, decision reserved and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: The court should have held a hearing to determine whether the photo identification of defendant by the victim was confirmatory and, if not, whether the identification procedure was impermissibly suggestive (see, People v Rodriguez, 79 NY2d 445). We have reviewed defendant’s other contentions on appeal and we find them to be without merit. The verdict is supported by the weight of the evidence and the court properly denied defendant’s motion to dismiss pursuant to CPL 30.30. We remit the matter to Supreme Court, therefore, for a hearing as required by People v Rodriguez (supra). (Appeal from Judgment of Supreme Court, Monroe County, Bergin, J.—Assault, 1st Degree.) Present—Callahan, J. P., Green, Lawton, Boomer and Boehm, JJ.