People v. Davis

169 A.D.2d 508, 564 N.Y.S.2d 171, 1991 N.Y. App. Div. LEXIS 358

Opinion

Appeal from judgment, Supreme Court, New York County (Albert P. Williams, J., at Wade hearing, jury trial, and sentence), rendered January 12, 1989, convicting defendant of robbery in the second degree and grand larceny in the fourth degree and sentencing him to concurrent indeterminate terms of imprisonment of 4 to 8 years and IV2 to 3 years, respectively, unanimously held in abeyance, and the matter remanded for further proceedings.

The hearing court erred in concluding that the lineup identification in this case was not suggestive. Defendant was the only person in the lineup wearing clothing that was substantially similar to the clothing described by the complaining witness as worn by the perpetrator of the crime. (See, People v Owens, 74 NY2d 677.) Further, the identifying witness was told before viewing the lineup that the person she previously had picked from the photographic array would be present in the lineup. In view of these circumstances, together with the substantial differences in height between the defendant and other individuals chosen as fillers, we find that the lineup was suggestive.

Moreover, in light of the fact that the complaining witness did not testify at the hearing, this court may not rely upon her testimony at trial to determine that she had an independent source for her identification of the defendant. (People v Hale, 142 AD2d 172.) Accordingly, the matter is remanded for further hearing to allow the People to establish that the witness has an independent source to identify the defendant in the court, and the appeal held in abeyance pending determination of the issue. (See, People v Ryan, 147 AD2d 508.) Concur—Ross, J. P., Milonas, Rosenberger, Asch and Kassal, JJ.