Opinion
2000-05307
Argued January 29, 2002.
March 5, 2002.
Appeal by the People from an order of the Supreme Court, Queens County (Erlbaum, J.), dated March 29, 2000, which granted that branch of the defendant's omnibus motion which was to suppress identification testimony.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Lynne Kurtz-Citrin of counsel), for appellant.
Before: DAVID S. RITTER, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, JJ.
ORDERED that the order is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress identification testimony is denied, and the matter is remitted to the Supreme Court, Queens County, for further proceedings.
The hearing court erred in its determination that the People failed to meet their initial burden of establishing the reasonableness of the pretrial identification procedure and the lack of undue suggestiveness (see, People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833). The hearing court equated the witness's lack of independent recollection and the use of notes with a failure of the People's proof (see, People v. Brown, 238 A.D.2d 204, 205). The use of written material, however, "bears only upon [the officer's] credibility" (People v. Brown, supra, at 205; People v. Rosario, 275 A.D.2d 224; People v. Cid, 216 A.D.2d 131). Where, as here, the hearing court expressly found the arresting officer to be a very credible witness, it erred in ignoring his testimony. The testimony, which was consistent and unimpeached, was that the undercover officer transmitted a detailed description of the defendant and her location, that he saw no one else in that vicinity matching the description except the defendant, and that he gave contemporaneous confirmation that the arresting officer had the woman the undercover described (see, People v. Brown, supra; see also, People v. Infante, 245 A.D.2d 303). Accordingly, the hearing court erred in granting that branch of the defendant's omnibus motion which was to suppress identification testimony.
In light of our determination, we need not address the People's contention that the hearing court should not have precluded them from offering testimony on an independent source for an in-court identification of the defendant.
RITTER, J.P., SMITH, KRAUSMAN and TOWNES, JJ., concur.