PEOPLE v. HARGROVES

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

The PEOPLE, etc., respondent, v. Tyree HARGROVES, appellant.

Decided: March 31, 2003

FRED T. SANTUCCI, J.P., LEO F. McGINITY, HOWARD MILLER, and SANDRA L. TOWNES, JJ. Daniel Guttmann, Smithtown, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Jill Gross-Marks of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.) rendered July 26, 2000, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.   Justice Howard Miller has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1 [c] ).

ORDERED that the judgment is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress identification testimony is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

 The police lacked reasonable suspicion to stop and detain the defendant for the purpose of a showup identification (see People v. Riddick, 269 A.D.2d 471, 704 N.Y.S.2d 270).   Thus, the hearing court should have granted that branch of the defendant's omnibus motion which was to suppress identification testimony (see People v. Gethers, 86 N.Y.2d 159, 162, 630 N.Y.S.2d 281, 654 N.E.2d 102;  People v. Dubinsky, 289 A.D.2d 415, 416, 734 N.Y.S.2d 245;  People v. Yiu C. Choy, 173 A.D.2d 883, 884, 571 N.Y.S.2d 83).

 Under the particular circumstances of this case, including the fact that at the trial the complainant was unable to identify either the defendant or any of the codefendants as his assailants, we are constrained to dismiss the indictment (see People v. Rossi, 80 N.Y.2d 952, 954, 590 N.Y.S.2d 872, 605 N.E.2d 359;  People v. Folk, 284 A.D.2d 476, 477, 727 N.Y.S.2d 131;  cf.   People v. Perkins, 189 A.D.2d 830, 833, 592 N.Y.S.2d 752).

In light of this determination, we need not reach the defendant's remaining contentions.

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