People v. Ferrance

Appellate Division of the Supreme Court of New York

People v. Ferrance

247 A.D.2d 204, 667 N.Y.S.2d 754, 1998 N.Y. App. Div. LEXIS 773

Appellate Division of the Supreme Court of the State of New York·Decided February 3, 1998·Published·Cited by 1 cases

Opinion

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered April 19, 1995, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 3¼ to 6½ years, unanimously reversed, on the law and the facts, the motion to suppress the out-of-court identification granted and the matter remanded for a new trial preceded by an independent source hearing.

As the People concede, the officer did not have reasonable suspicion to detain defendant pending an identification by the eyewitness. Defendant’s clothing was sharply at variance from the description of the suspect, and there was insufficient spatial or temporal proximity between the detention and the crime as well as a lack of suspicious circumstances (see, People v Brown, 215 AD2d 333, lv withdrawn 86 NY2d 791). Defendant is therefore entitled to suppression of the showup identification and a remand for an independent source hearing as well as a new trial (People v Burts, 78 NY2d 20).

Concur — Milonas, J. P., Rubin, Tom and Mazzarelli, JJ.

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Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered April 19, 1995, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 3¼ to 6½ years, unanimously reversed, on the law and the facts, the motion to suppress the out-of-court identification granted and the matter remanded for a new trial preceded by an independent source hearing.

As the People concede, the officer did not have reasonable suspicion to detain defendant pending an identification by the eyewitness. Defendant’s clothing was sharply at variance from the description of the suspect, and there was insufficient spatial or temporal proximity between the detention and the crime as well as a lack of suspicious circumstances (see, People v Brown, 215 AD2d 333, lv withdrawn 86 NY2d 791). Defendant is therefore entitled to suppression of the showup identification and a remand for an independent source hearing as well as a new trial (People v Burts, 78 NY2d 20).

Concur — Milonas, J. P., Rubin, Tom and Mazzarelli, JJ.

People v. Ferrance, 247 A.D.2d 204, 667 N.Y.S.2d 754, 1998 N.Y. App. Div. LEXIS 773 (N.Y. Ct. App. 1998).

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Opinion

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