People v. Sheffield

185 A.D.2d 256

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1992
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Felig, J.), rendered October 16, 1990, convicting him of robbery in the first degree, burglary in the first degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered to be preceded by an independent source hearing. No questions of fact have been raised or considered.

At the conclusion of the pretrial Wade hearing, at which the complainant did not testify, the court ruled that the complainant’s lineup identification of the defendant was tainted, and suppressed the lineup identification testimony. The defendant argues, inter alia, that the trial court committed reversible error in subsequently allowing the complainant to give in-court identification testimony without conducting an independent source hearing. We agree.

Once a pretrial identification has been suppressed as tainted, a pretrial determination must be made as to whether the witness has an independent source for an in-court identification (see, People v Burts, 78 NY2d 20, 24-25; People v Dodt, 61 NY2d 408, 417). Since an independent source was not established at the Wade hearing, and no pretrial determination was made as to independent source, the conviction must be reversed, and a new trial ordered, to be preceded by an independent source hearing (see, People v Dodt, supra, at 417; People v Minaya, 183 AD2d 920). Harwood, J. P., O’Brien, Ritter and Copertino, JJ., concur.