Opinion · Appellate Division of the Supreme Court of the State of New York
People v. Ghee
42 A.D.2d 860
- Type
- Opinion
- Court
- Appellate Division of the Supreme Court of the State of New York
- Jurisdiction
- New York
- Date
- 1973-08-13
- Topic
- general
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered July 9, 1971, convicting him of two counts of attempted murder, attempted robbery in the first degree, and assault in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed on the law and a new trial ordered. The findings of fact are affirmed. After the Wade hearing, the court ruled that the photo identification of the appellant by Transit Patrolman Ray was improper and inadmissible in evidence at the trial. However, it refused to make a finding as to whether or not such improper identification poisoned Ray’s subsequent in-court identification of the appellant.
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- Cited by
- 1 opinion
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered July 9, 1971, convicting him of two counts of attempted murder, attempted robbery in the first degree, and assault in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed on the law and a new trial ordered. The findings of fact are affirmed. After the Wade hearing, the court ruled that the photo identification of the appellant by Transit Patrolman Ray was improper and inadmissible in evidence at the trial. However, it refused to make a finding as to whether or not such improper identification poisoned Ray’s subsequent in-court identification of the appellant. Instead, the court stated that it would let the jury pass On the issue of a purported tainted pretrial identification. Such procedure is clearly improper and constituted prejudicial and reversible error (People v. Ballott, 20 N Y 2d 600; People v. Lombardi, 18 A D 2d 177, affd. 13 N Y 2d 1014). We therefore remit the matter with a direction that before a new trial is held, a new Wade hearing should be conducted at which proceeding the court will make the required findings (People v. Hicks, 40 A D 2d 836; People v. Growieh, 38 A D 2d 733). Hopkins, Acting P. J., Latham, Gulotta, Brennan and Benjamin, JJ., concur.