Opinion
178
Decided January 16, 2003.
Appeal, by permission of the Chief Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered May 3, 2002, which affirmed a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree.
Submitted by Janet C. Somes, for appellant.
Submitted by Wendy Evans Lehmann, for respondent.
Chief Judge Kaye and Judges Smith, Ciparick, Wesley, Rosenblatt, Graffeo and Read concur.
MEMORANDUM:
The Appellate Division erred in applying the harmless error rule where defendant pleaded guilty after the erroneous denial without a hearing of his motion to suppress certain identification testimony (see People v. Sampson, 73 N.Y.2d 908; People v. Grant, 45 N.Y.2d 366). The case should be remitted to County Court for a hearing to determine whether Officer Alvarado's identification was confirmatory. If, after that hearing, the court concludes that the People have not sustained their burden of proving the procedure was confirmatory, defendant's guilty plea should be vacated and further proceedings should be had as the circumstances may warrant. However, if the court concludes that the identification procedure was confirmatory, the judgment should be amended to reflect that result.
On review of submissions pursuant to section 500.4 of the Rules, order modified by remitting the case to County Court, Monroe County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.