People v. Fuentes

74 A.D.2d 753, 425 N.Y.S.2d 589, 1980 N.Y. App. Div. LEXIS 10491

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1980
• Status: Published

Opinions

Judgment of the Supreme Court, New York County, rendered March 28, 1977 convicting defendant of robbery in the first degree and two counts of robbery in the second degree, and sentencing him to concurrent terms of imprisonment, affirmed. The sole point of difference between us and our dissenting brother arises from the refusal of the Trial Judge to reopen the Wade hearing during the course of the trial. Leun Wong was robbed on Market Street in the evening hours of June 4, 1976 by two persons described as Hispanics. Shek Ying witnessed the crime. Ming Lok Wong and Sik Man Chu, two auxiliary policemen who were on duty nearby, pursued the robbers. At Pike and Cherry Streets the culprits split up. Ultimately, one, the defendant, was apprehended by Housing Authority Police Officer Frank Ogaard. Defendant was taken to the housing precinct and Ming was dispatched to bring Leun and Shek to the police station. There, both identified defendant as one of the robbers. A combined suppression and Wade hearing was held on October 26, 1976 at which Ming, Sik, Henry Lee, another auxiliary policemen and Ogaard testified. Neither Leun nor Shek was called either by the prosecution or the defendant. At the conclusion of the hearing both of defendant’s applications were denied. On this appeal defendant raises no question with respect to the suppression motion. During the trial defendant moved to reopen the Wade hearing contending that he had never examined Leun and, accordingly, there had never been a judicial determination of this capacity to make an untainted identification. The trial court denied the motion. This, it is contended by defendant, was error. A criminal trial is not a piecemeal proceeding to be interrupted for little or no reason. It ought not be suspended so that counsel may conduct discovery. Orderly procedure requires that specific rules be followed. Here, defendant had the right to inquire into the manner in which the prosecution intended to tie him into the robbery. He exercised that right. Had he desired he could have had both Leun and Shek produced at the Wade hearing. Whether the reasons which prompted his failure to compel their production were strategic or otherwise we cannot say. In any event, he elected not to seek their testimony. Having chosen to proceed as he did, he was no longer at liberty to renew the application at the trial absent some special or compelling circumstance. Since no such showing was made, or indeed, claimed, the refusal of the trial court to permit a reopening of the Wade hearing during the course of the trial did not constitute an abuse of discretion. Concur—Birns, Markewich and Bloom, JJ.