THE PEOPLE &C., RESPONDENT, v. FELIX RODRIGUEZ, APPELLANT.
79 N.Y.2d 445, 593 N.E.2d 268, 583 N.Y.S.2d 814 (1992).
May 7, 1992
1 No. 34
Decided May 7, 1992
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Alexandra E. Trinkoff, for Appellant.
Eleanor J. Ostrow, for Respondent.
KAYE, J.:
This appeal centers on the "confirmatory identification" exception to
the notice and hearing requirements of the Criminal Procedure Law for
suggestive pretrial identification procedures. We conclude that, where
a citizen eyewitness claimed to have seen the defendant numerous times
in a store, it was error to deny defendant's Wade hearing motions
summarily, because the witness' assertion did not establish such
familiarity with defendant that the danger of police suggestiveness
was eliminated as a matter of law.
I.
On August 22, 1986, David Benito--employed as a clerk in the grocery
store across the street from his Manhattan apartment-- woke up late
for work, looked out his fourth-floor window to see if his boss was
waving him down, and noticed a group of about seven people gathered in
the street below. Two men were arguing. One shoved the other,
whereupon the latter drew a gun, shot the first man to death and fled.
Within two hours Benito reported his observations at the local
stationhouse. He was shown two or three photographs, but did not
recognize any as the assailant. Three days later, on August 25, a
detective presented a single photograph to Benito, and he identified
the person depicted--defendant--as the gunman.
Defendant was thereafter arrested in an unrelated incident and charged
with the August 22 murder. Shortly after indictment, defendant filed a
motion requesting a Wade hearing to explore the suggestiveness of the
photo showup. The People opposed the hearing, alleging by affirmation
that Benito was "very familiar" with defendant from the neighborhood
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. FELIX RODRIGUEZ, APPELLANT.
This opinion is uncorrected and subject to revision before publication in the New York
This appeal centers on the "confirmatory identification" exception to the notice and hearing
We conclude that, where a citizen eyewitness claimed to have seen the defendant numerous
On August 22, 1986, David Benito--employed as a clerk in the grocery store across the street
defendant filed a motion requesting a Wade hearing to explore the suggestiveness of the photo
In support, the People relied on Benito's grand jury testimony, in which he testified that he
The People conceded that Benito did not have a "relationship familiarity" with defendant, but
The Appellate Division disagreed, holding that Benito's grand jury testimony established that
The legislative recognition of the importance of testing the reliability of identification
CPL 710.30 requires the People to inform defendant that they intend to offer identification
Beginning with People v Gissendanner, this Court carved out a narrow exception to the notice
Though first articulated in Gissendanner, this "known to one another" exception--the
As we thereafter recognized in Collins, whether the exception applies depends on the extent
A court's invocation of the "confirmatory identification" exception is thus tantamount to a
Without more information, the trial court had no basis for ruling, in essence, that this
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