Opinion
May 7, 1991
Appeal from the Supreme Court, New York County (Leslie Crocker Snyder, J.).
The indictment charged defendant with selling heroin to an undercover police officer on August 4, 1988. The "confirmatory" identification of defendant by the undercover officer, to ascertain whether other officers had arrested the correct person, was not made until November 1, 1988, although the undercover officer also met with defendant for approximately ten minutes on October 20, 1988.
Defendant moved to suppress any identification testimony on the ground that the showup identification by the undercover officer was unnecessarily suggestive. He further alleged that because the identification took place three months after the transaction for which he was arrested, it was not merely confirmatory in nature. The Supreme Court disagreed and summarily denied defendant's motion to suppress identification testimony.
It was error to deny defendant's motion for a Wade hearing. There is no categorical rule exempting from requested Wade hearings confirmatory identifications by police officers (People v Wharton, 74 N.Y.2d 921). The identification of defendant, made almost three months after the sale for which he was arrested, cannot be considered merely confirmatory (see, People v Hayes, 162 A.D.2d 410; People v Rubio, 133 A.D.2d 475). A hearing was therefore required pursuant to CPL 710.60 (4) (People v Newball, 76 N.Y.2d 587; and see, People v Gordon, 76 N.Y.2d 595).
Concur — Murphy, P.J., Rosenberger, Wallach and Asch, JJ.