The Court of Appeals, reversing (modifying) the Appellate Division, determined defendant was entitled to a Rodriguez hearing on whether a witness’s identification of the defendant was confirmatory. The Court of Appeals noted that the Appellate Division should not have relied on trial testimony to overcome the suppression court’s error:
Supreme Court erred in denying defendant’s pretrial request for a hearing pursuant to People v Rodriguez (79 NY2d 445 ), as the prosecutor here offered only bare assurances that the witness was familiar with defendant. Further, the Appellate Division erroneously relied on testimony adduced at trial to overcome the suppression court’s error.
“Thus, the case should be remitted to Supreme Court for a hearing to determine whether the [photographic] identification procedure was confirmatory. If, after that hearing, the court concludes that the People have not sustained their burden, a Wade hearing should be held and further proceedings, including a new trial, should be had as the circumstances may warrant. If the court concludes that a Wade hearing is not required, the judgment should be amended to reflect that result” … . People v Carmona, 2021 NY Slip Op 05390, Ct App 10-7-21