People v. Daniels

139 A.D.2d 478, 527 N.Y.S.2d 711, 1988 N.Y. App. Div. LEXIS 4519

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1988
• Status: Published

Opinion

— Appeal from the judgment of the Supreme Court, New York County (Harold J. Rothwax, J., on suppression motion; Myriam Altman, J., at suppression hearing; and Howard Bell, J., at trial and sentence), rendered May 7, 1985, which convicted defendant, after a jury trial, of two counts of robbery in the second degree and sentenced him to two concurrent indeterminate terms of imprisonment of from 4 to 8 years, is held in abeyance, and the matter is remanded for a Wade hearing.

We hold this appeal in abeyance, so that this matter may be remanded for a Wade hearing. The Calendar Judge erred in summarily denying defendant’s motion to suppress the complainant’s identification testimony without a hearing. Defendant’s allegations in his motion papers, that he and two other suspects were jointly displayed to the complainant, handcuffed and surrounded by uniformed police officers, were sufficient to raise a question as to the propriety of the identification procedure and required that a hearing be held.

Although at the hearing on the motion to suppress physical evidence, Justice Altman, the presiding Judge, commented that defense counsel could elicit information about the identification procedure as well, the court eventually declined to make any rulings on the identification issue, concluding that "there just wasn’t a complete opportunity to discuss that issue.” We also decline to reach the merits of the other issues and instead remand for a prompt hearing. Concur — Sullivan, J. P., Carro, Asch and Milonas, JJ.