Opinion
November 6, 1972
Appeal by defendant from a judgment of the Supreme Court, Richmond County, rendered May 5, 1969, convicting him of robbery in the first degree, grand larceny in the second degree and possession of a dangerous weapon, upon a jury verdict, and imposing sentence. Judgment reversed on the law, and new trial ordered. The appeal did not present questions of fact. The trial court failed to make findings after conducting a pretrial suppression hearing. Under these circumstances, before the new trial is held a new hearing should be held at which the court will make the required findings ( People v. Growich, 38 A.D.2d 733). In its instructions to the jury the question of a tainted pretrial identification was left for the jury to decide. This is clearly improper in the light of People v. Ballott ( 20 N.Y.2d 600) and People v. Lombardi ( 18 A.D.2d 177, affd. 13 N.Y.2d 1014) and constituted prejudicial and reversible error. In Point I of the People's brief it is stated that "The appellant is entitled to a reversal of his conviction and a direction for a new Wade hearing and trial." Latham, Acting P.J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.