Opinion
February 10, 1986
Appeal from the Supreme Court, Kings County (Kramer, J.).
Appeal held in abeyance and matter remitted to the Supreme Court, Kings County, to hear and report in accordance herewith. The hearing shall be held with all convenient speed.
At trial, the two identification witnesses, who did not testify at the Wade hearing, stated that defendant was walked right past them at the precinct in handcuffs and in the custody of the officer to whom they had made street identifications earlier that day. In addition, one of these witnesses, Mackie Vielot, testified that she also identified defendant thereafter at an arranged showup at the precinct. Yet, at the Wade hearing, the court only considered the propriety of the initial street identifications and, finding them proper, did not consider the question of whether either witness had an adequate independent basis for an in-court identification of defendant.
It is apparent, upon this record, that both station house viewings of the defendant were suggestive (see, e.g., People v Smalls, 112 A.D.2d 173; People v. Rogers, 81 A.D.2d 980), and, under the facts of this case, cannot be justified as confirmatory (cf. People v. Morales, 37 N.Y.2d 262, 271; People v. Higgs, 111 A.D.2d 410) or harmless accidental station house viewings (cf. People v. Gonzalez, 61 A.D.2d 666, 671, affd 46 N.Y.2d 1011). Thus, it is necessary to examine these witnesses as to their independent basis for in-court identifications at a new Wade hearing (see, e.g., People v. De Congilio, 71 A.D.2d 990; People v. Rogers, supra).
In light of our decision that a new Wade hearing is required, defendant's appeal will be held in abeyance pending Criminal Term's determination at that hearing. Bracken, J.P., Rubin, Lawrence and Eiber, JJ., concur.