People v. Murphy

260 A.D.2d 505, 686 N.Y.S.2d 332, 1999 N.Y. App. Div. LEXIS 3811

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered December 2, 1997, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is reversed, and a new trial is ordered, to be preceded by an independent source hearing.

We agree with the defendant that, due to disparities between the defendant and the lineup fillers, the lineup procedure was unduly suggestive (see, People v Owens, 74 NY2d 677). Thus, because no basis was developed at the Wade hearing for an independent source for the victims’ in-court identifications of the defendant, a new trial is required, to be preceded by an independent source hearing (see, People v Burts, 78 NY2d 20). O’Brien, J. P., Ritter, Thompson and Goldstein, JJ., concur.