People v. Brown

465 N.E.2d 362, 62 N.Y.2d 743, 476 N.Y.S.2d 823, 1984 N.Y. LEXIS 4341

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified and the case remitted for a new suppression hearing.

A blind Judge should not preside at a hearing where, as in this case, because of an inability to see, the Judge is unable to evaluate a critical exhibit — a photograph of the contested lineup — without calling upon another person to describe it to him. Under these circumstances the Judge should have recused himself, as the defendant requested, and the denial of the motion constituted an abuse of discretion as a matter of law.

If the defendant’s motion to suppress is denied, an amended judgment should be entered reflecting that determination. However, if the court grants the defendant’s motion in whole, or in part, it should take further action consistent with its determination including, if appropriate, the granting of a new trial.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Order modified and case remitted to Supreme Court, Kings County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.