PEOPLE v. HILL (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of grand larceny in the third degree (Penal Law § 155.35) and scheme to defraud in the first degree (§ 190.65[1][b] ).  We agree with defendant that Supreme Court erred in refusing to suppress the pretrial identifications of defendant.   The witnesses identified defendant from photo arrays that were compiled using a photograph of defendant taken after an illegal arrest, and thus those identifications should have been suppressed as the fruit of the illegal arrest (see People v. Dodt, 61 N.Y.2d 408, 417, 474 N.Y.S.2d 441, 462 N.E.2d 1159;  People v. Walker, 198 A.D.2d 826, 827, 604 N.Y.S.2d 403;   People v. Simpson, 174 A.D.2d 348, 351, 570 N.Y.S.2d 810;  see generally United States v. Crews, 445 U.S. 463, 472-473, 100 S.Ct. 1244, 63 L.Ed.2d 537).   Because none of the witnesses testified at the Wade hearing, the People did not establish that each witness had an independent basis for his or her in-court identification of defendant (see Walker, 198 A.D.2d at 828, 604 N.Y.S.2d 403;  cf. People v. Pleasant, 54 N.Y.2d 972, 973-974, 446 N.Y.S.2d 29, 430 N.E.2d 905, cert. denied 455 U.S. 924, 102 S.Ct. 1285, 71 L.Ed.2d 466).   We therefore conclude that defendant is entitled to a new Wade hearing on the issue whether the witnesses have an independent basis for their in-court identification of defendant (see Walker, 198 A.D.2d at 828, 604 N.Y.S.2d 403;  see generally People v. Burts, 78 N.Y.2d 20, 23-25, 571 N.Y.S.2d 418, 574 N.E.2d 1024;  People v. Dubinsky, 289 A.D.2d 415, 417, 734 N.Y.S.2d 245).   Thus, we reverse the judgment, grant that part of defendant's omnibus motion seeking to suppress pretrial identification evidence and remit the matter to Supreme Court for a new Wade hearing on that issue and a new trial on counts one and three of the indictment, if the People are so advised (see Burts, 78 N.Y.2d at 22, 571 N.Y.S.2d 418, 574 N.E.2d 1024;  People v. Williams, 34 A.D.3d 1180, 1181, 826 N.Y.S.2d 532).

 We reject the further contention of defendant that the court erred in refusing to suppress his statements to the police as the fruit of an illegal arrest.   Those statements were made in response to investigatory questioning by the police before defendant was arrested (see generally People v. Sachs, 15 A.D.3d 1005, 1006-1007, 788 N.Y.S.2d 743, lv. denied 5 N.Y.3d 768, 801 N.Y.S.2d 263, 834 N.E.2d 1273).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to establish his fraudulent intent for scheme to defraud (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919) and, in any event, that contention is without merit (see People v. Bastian, 294 A.D.2d 882, 883, 743 N.Y.S.2d 217, lv. denied 98 N.Y.2d 694, 747 N.Y.S.2d 412, 776 N.E.2d 1;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   In light of our determination, we do not reach defendant's remaining contentions.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, that part of the omnibus motion seeking to suppress pretrial identification evidence is granted and the matter is remitted to Supreme Court, Erie County, for further proceedings.

MEMORANDUM: