Summary
holding that the defendant was entitled to cross-examine a witness about her familiarity with the defendant at a pre-Wade hearing when she had seen him more than thirty times at a local store and in the neighborhood
Summary of this case from Zimmerman v. BurgeOpinion
Argued November 15, 1991
Decided December 18, 1991
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Nicholas Figueroa, J.
Walter J. Evans, Jr., and Philip L. Weinstein for appellant.
Robert T. Johnson, District Attorney (Daniel S. Ratner and Billie Manning of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed and the case remitted to Supreme Court, Bronx County, for further proceedings in accordance with this memorandum.
Defendant was charged with first degree robbery arising out of a knifepoint street encounter in The Bronx. The complainant identified him out of a photo array. At a hearing to determine whether a Wade hearing was required, the complainant testified that prior to the robbery she had seen the defendant more than 10 times in the bodega where she worked, and had seen him more than 20 times in the neighborhood where they both lived. The court cut off cross-examination of the complainant in several relevant respects, and concluded that the photo identification was confirmatory, that CPL 710.30 notice was not required, and that there was no evidence of impermissible suggestiveness by the police.
Defendant was convicted after a jury trial, and the Appellate Division affirmed the judgment, finding that although the curtailment of cross-examination was error, the complainant's testimony sufficiently established the confirmatory nature of the photo identification ( 161 A.D.2d 489).
We agree that it was error to restrict cross-examination under these circumstances, because once the complainant was called as a witness for the People at the hearing, defendant had the right to cross-examine her (contrast, People v Chipp, 75 N.Y.2d 327). Unlike the Appellate Division, however, we conclude that the error requires a reversal. The issue central to the hearing was the extent of the complainant's prior familiarity with the defendant and that issue became crucial at trial in this single-witness identification case. Thus, the preclusion of an adequate opportunity to cross-examine on that key issue eliminated any supportable basis upon which to find that the photo identification was the product of prior familiarity and, therefore, merely confirmatory (see, People v Newball, 76 N.Y.2d 587; People v Collins, 60 N.Y.2d 214). The case must be remitted for a hearing to determine whether a Wade hearing is required. If, after that pre- Wade hearing, the court concludes that a Wade hearing is not required, the judgment should be amended to reflect that determination and the judgment of conviction and sentence treated as affirmed. If, after the pre- Wade hearing, the nisi prius court determines that a Wade hearing is required, a Wade hearing should be held and further proceedings, including a new trial, should be carried out as circumstances may warrant. We have examined defendant's remaining argument and conclude it is without merit.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Order reversed, etc.