PEOPLE v. REDDING (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered January 14, 2004, convicting him of attempted assault in the first degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, without a hearing (DiMango, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the matter 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, more particularly, whether the photographic identification was merely confirmatory in nature, and the appeal is held in abeyance in the interim.   The Supreme Court, Kings County, is to file its report with all convenient speed.

In his omnibus motion, the defendant sought, inter alia, to suppress identification testimony by the complaining witness on the ground that a photographic identification by the witness was impermissibly suggestive.   The Supreme Court denied the motion, without a hearing, on the ground that the witness knew the defendant and therefore the identification was merely confirmatory.   The Supreme Court erred in denying the defendant's motion without a hearing (see People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268;  People v. Williamson, 79 N.Y.2d 799, 580 N.Y.S.2d 170, 588 N.E.2d 68).   Therefore, we remit the matter to the Supreme Court for a hearing to determine whether the photographic identification was merely confirmatory in nature (see People v. Rodriguez, 79 N.Y.2d at 453, 583 N.Y.S.2d 814, 593 N.E.2d 268).   Since no determination has been made that the police employed a suggestive identification procedure, the appeal may be held in abeyance for a post-trial hearing with respect to this issue (see People v. Thomas, 225 A.D.2d 641, 638 N.Y.S.2d 789;  People v. Thornton, 222 A.D.2d 537, 539, 634 N.Y.S.2d 757;  People v. Bryan, 206 A.D.2d 434, 435-436, 614 N.Y.S.2d 542;   People v. Cinatus, 188 A.D.2d 481, 482, 590 N.Y.S.2d 537).   In light of this determination, we decide no other issues at this time.