Opinion
January 11, 1990
Appeal from the Supreme Court, New York County, William J. Davis, J., Daniel P. FitzGerald, J.
We hold that the People failed to meet their burden of proof in establishing, at the Wade hearing, the legitimacy of the police conduct. (People v. Dodt, 61 N.Y.2d 408, 415-416; People v Berrios, 28 N.Y.2d 361, 367; People v. Peterkin, 151 A.D.2d 407, 408-409, lv granted 74 N.Y.2d 822; People v. Tweedy, 134 A.D.2d 467, 468.) One of the two arresting officers, who was the sole witness at the Wade hearing, responded to a radio transmission of a burglary in progress. The transmission included a description of the alleged perpetrators, which the dispatcher had supposedly received from a civilian witness who, with a friend, had observed the crime from the fifth-story window of her apartment.
Shortly after arriving at the burglarized storefront and conducting a search of the area, the officer and his partner followed two men who fit the description of the burglary suspects onto a subway car. They advised the men, one of whom was appellant, that they matched the description as given by the dispatcher and asked them to return to the scene; the men complied.
The officer's partner telephoned the central dispatcher and asked that the witnesses be contacted. They then received another radio transmission that there had been a positive identification, which had been made by the witnesses to the central dispatcher from their fifth-story apartment window. The officers had no direct contact with the witnesses. (Cf., People v. James, 110 A.D.2d 1037.)
The facts and circumstances herein demonstrate that because the People did not call the central dispatcher to testify at the Wade hearing, they were unable to establish that no suggestive statements were made to the witnesses. Indeed, the prosecutor at the hearing acknowledged that any statements by the central dispatcher to the witnesses were, at that time, unverified. Therefore, the Wade hearing must be reopened for testimony by the central dispatcher to be heard, so that it may be determined whether any statements were made to the witnesses which may have tainted the showup identification.
Concur — Murphy, P.J., Sullivan, Carro and Rosenberger, JJ.