People v. Session

135 A.D.2d 847, 522 N.Y.S.2d 677, 1987 N.Y. App. Div. LEXIS 52786

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered May 8, 1986, convicting him of burglary in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the case is remitted to the Supreme Court, Kings County, to hear and report on that branch of the defendant’s omnibus motion which was to suppress identification testimony and the appeal is held in abeyance in the interim; the Supreme Court shall conduct a hearing and file a report containing its findings and conclusions with respect thereto in this court with all convenient speed.

We find that the defendant’s motion papers were sufficient under CPL 710.60 (1) to entitle him to a hearing on whether the complainant’s proposed testimony concerning an out-of-court identification of the defendant was admissible, and if not, whether there was a sufficient independent basis for an in-court identification of the defendant. Therefore, "summary denial of that aspect of the defendant’s motion was improper (CPL 710.60; People v Williams, 46 AD2d 727; cf. People v Roberto H., 67 AD2d 549, 552) and a hearing on the admissibility of the identification testimony must be conducted” (People v Vitetta, 118 AD2d 885, 886). Mollen, P. J., Lawrence, Weinstein and Kooper, JJ., concur.