PEOPLE v. FERRANCE (1998)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Rupert FERRANCE, Defendant-Appellant.

Decided: February 03, 1998

Before MILONAS, J.P., and RUBIN, TOM and MAZZARELLI, JJ.

Korey E. Kerscher, for respondent. Toko Serita, for defendant-appellant.

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 31/414 to 61/212 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the crime as well as a lack of suspicious circumstances (see, People v. Brown, 215 A.D.2d 333, 627 N.Y.S.2d 45, appeal withdrawn 86 N.Y.2d 791, 632 N.Y.S.2d 504, 656 N.E.2d 603). 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 N.Y.2d 20, 571 N.Y.S.2d 418, 574 N.E.2d 1024).

MEMORANDUM DECISION.

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