People v. Gaddy
| Decision Date | 23 December 1985 |
| Citation | 115 A.D.2d 658,496 N.Y.S.2d 495 |
| Parties | The PEOPLE, etc., Respondent, v. Dwight GADDY and Walter Gordon, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Albert J. Brackley, Brooklyn, for appellant Dwight Gaddy.
Philip L. Weinstein, New York City (Brian Sheppard, of counsel), for appellant Walter Gordon.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore and Debra W. Petrover, of counsel), for respondent.
Before MOLLEN, P.J., and GIBBONS, O'CONNOR and RUBIN, JJ.
MEMORANDUM BY THE COURT.
Appeals by defendants from two judgments (one as to each of them) of the Supreme Court, Kings County (DeLury, J.), both rendered March 16, 1981, convicting each of them of robbery in the first degree (two counts), upon jury verdicts, and imposing sentences. The appeals bring up for review the denials, after a hearing, of defendants' motions to suppress identification testimony. By order dated December 5, 1983, the appeals were held in abeyance and the matter was remitted to the Supreme Court, Kings County, for a de novo Wade hearing (see, People v. Gaddy, 98 A.D.2d 729, 469 N.Y.S.2d 143). Criminal Term (Marano, J.) has now complied.
Judgments reversed, on the law and the facts, motions granted to the extent that Kendall Russell's lineup and in-court identification testimony and Melvin Penn's lineup identification testimony are suppressed, and new trial ordered.
The facts of this matter were discussed in detail in our prior decision dated December 5, 1983. At the second Wade hearing, held pursuant to our order, Detective Mack Ferguson testified that complainants Kendall Russell and Melvin Penn sat together at the same table, while they examined photographs in an attempt to identify the perpetrators of the crime. The evidence, although contradictory, tended to establish that the two conferred upon their selection of photographs prior to making their identification. Criminal Term (Marano, J.), noted that this improper procedure was unduly suggestive. We agree.
We further agree with Criminal Term that the separate lineups conducted for each of the defendants were both unduly suggestive and testimony concerning complainant Penn's identifications at the lineups must be suppressed. The photograph of the lineup of defendant Gordon reveals that Gordon was the shortest participant in the lineup, that he had very short hair, and that he appeared to be the youngest of the six individuals. This was improper in view of the fact that the original description provided by the complainants consisted of little more than the...
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Gordon v. State
...to be permitted would be in-court by Penn who was found to have had an independent recollection of the robbers. (People v. Gaddy, 115 A.D.2d 658, 496 N.Y.S.2d 495 cf., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, A new trial never took place, however. After repeated ......
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