People v. Darden

Appellate Division of the Supreme Court of New York

People v. Darden

154 A.D.2d 928, 545 N.Y.S.2d 875, 1989 N.Y. App. Div. LEXIS 12990

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 6, 1989

StatusPublished

This text of 154 A.D.2d 928 (People v. Darden) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Darden, 154 A.D.2d 928, 545 N.Y.S.2d 875, 1989 N.Y. App. Div. LEXIS 12990 (N.Y. Ct. App. 1989).

Pincite

Opinion

Case held, decision reserved and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: The court erred in summarily denying the motion to suppress identification testimony as the product of an unnecessarily suggestive photo array. Under the circumstances of this case, defense counsel’s affidavit in support of the motion [929]*929contained averments that were sufficiently specific and factual to support the grounds alleged as a basis for the relief requested (see, CPL 710.60 [3] [former (b)]; see also, L 1986, ch 776; Preiser, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 11B, 1989 Pocket Part, CPL 710.60, at 73). The court’s summary denial of the motion deprived defendant of the opportunity to explore whether police said anything suggestive to the victim which might have prompted her to select defendant’s photo from the second array and denied defendant the opportunity to explore the circumstances surrounding the first array. In the context of this one-witness identification case, it is impossible to conclude that the error was harmless. (Appeal from judgment of Supreme Court, Erie County, Kubiniec, J. — attempted robbery, first degree, and other charges.) Present — Denman, J. P., Boomer, Green, Pine and Davis, JJ.

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Case held, decision reserved and matter remitted to Supreme Court, Erie County, for further proceedings, in accordance with the following memorandum: The court erred in summarily denying the motion to suppress identification testimony as the product of an unnecessarily suggestive photo array. Under the circumstances of this case, defense counsel’s affidavit in support of the motion [929]*929contained averments that were sufficiently specific and factual to support the grounds alleged as a basis for the relief requested (see, CPL 710.60 [3] [former (b)]; see also, L 1986, ch 776; Preiser, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 11B, 1989 Pocket Part, CPL 710.60, at 73). The court’s summary denial of the motion deprived defendant of the opportunity to explore whether police said anything suggestive to the victim which might have prompted her to select defendant’s photo from the second array and denied defendant the opportunity to explore the circumstances surrounding the first array. In the context of this one-witness identification case, it is impossible to conclude that the error was harmless. (Appeal from judgment of Supreme Court, Erie County, Kubiniec, J. — attempted robbery, first degree, and other charges.) Present — Denman, J. P., Boomer, Green, Pine and Davis, JJ.

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Bluebook (online)

154 A.D.2d 928, 545 N.Y.S.2d 875, 1989 N.Y. App. Div. LEXIS 12990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-darden-nyappdiv-1989.