Opinion
July 10, 1967
Judgment of the Supreme Court, Kings County, dated April 20, 1966, reversed on the law and the facts and in the exercise of discretion, and new trial ordered. In our opinion, the testimony of the informer exonerating defendant meets the requirements of subdivision 7 of section 465 of the Code of Criminal Procedure and the motion for a new trial should have been granted. We also think that, although defendant's requested charge on identification was seriously deficient, it should have elicited some cautionary instruction to the jury as to the circumstances under which the identifications were made (cf. United States v. Wade, 388 U.S. 218; People v. Diaz, 8 A.D.2d 732). Christ, Brennan and Benjamin, JJ., concur; Beldock, P.J., and Munder, J., dissent and vote to affirm the judgment.