You are here: / / ​ THE JUDGE SHOULD NOT HAVE DETERMINED THE TRIAL WITNESS’S IDENTIFICATION O...
, ,

​ THE JUDGE SHOULD NOT HAVE DETERMINED THE TRIAL WITNESS’S IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY FOR THE FIRST TIME AT TRIAL; A MIDTRIAL RODRIGUEZ HEARING SHOULD HAVE BEEN HELD; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing to determine whether a witness’s identification of defendant was confirmatory, noted that the judge should not have found the identification confirmatory for the first time based on the witness’s trial testimony. A Rodriguez hearing should have been when the issue came up at trial:

The witness in question disclosed on cross-examination at trial that he had identified defendant as the assailant in a photograph shown to him by the police. The People’s CPL 710.30 notice did not reference this identification. Defense counsel thus asked the court to strike the witness’s testimony on the ground of lack of notice, but the court, relying on the witness’s trial testimony, ruled that the People were not required to give notice because the identification was confirmatory. That was error. As the Court of Appeals has made clear, “prior familiarity should not be resolved at trial in the first instance” (Rodriguez, 79 NY2d at 452 …), and, in any event, the witness’s trial testimony was not sufficient to establish as a matter of law that the identification was confirmatory.

Although the witness testified that he knew defendant because he had seen him “a couple of times” at the barber shop, and that the two had each other’s phone numbers, he also testified that he did not know defendant well, that he knew him only by a common nickname, and that they never spoke again after the assault. A midtrial Rodriguez hearing would have allowed defense counsel to flesh out the extent of the relationship between the two men, thereby allowing the court to make a more informed determination as to whether the pretrial identification of defendant was confirmatory as a matter of law. People v Alcaraz-ubiles, 2023 NY Slip Op 01637, Fourth Dept 3-24-23

Practice Point: If the defense is not given notice of a witness’s identification of the defendant, the witness cannot testify about the identification unless it was “confirmatory,” I.e., based on knowing the defendant. Here the judge should not have found the identification confirmatory based on the witness’s trial testimony. A midtrial Rodriguez hearing should have been held. The matter was remitted.

 

You might also like
AN ORAL STIPULATION IS INVALID PURSUANT TO DOMESTIC RELATIONS LAW SECION 236(B)(3) AND CANNOT BE RATIFIED; THERE IS NOW AN EVEN SPLIT AMONG THE APPELLATE DIVISION DEPARTMENTS ON THIS ISSUE (FOURTH DEPT).
Where Arrest Was Not Authorized, Conviction for Resisting Arrest Was Against the Weight of the Evidence
19-Year Preindictment Delay Okay; Prior Incidents of Domestic Violence Probative of Motive, Intent and Identity; Admissions Are Direct, Not Circumstantial, Evidence
County Must Seek a Medical Income Execution Order (to Pay for a Child’s Health Insurance) Where No Medical Income Execution Order Has Yet Been Issued in the Case
Police Officer Involved In Accident Acted Appropriately In an Emergency Operation—Defendants Not Liable As a Matter of Law
SUPREME COURT DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL, MATTER REMITTED FOR A RULING (FOURTH DEPT).
PLAINTIFF BUS DRIVER WAS SPRAYED WITH DIESEL FUEL AS SHE ATTEMPTED TO FILL THE TANK OF THE BUS SHE WAS DRIVING; THE MANUFACTURER OF THE GAS PUMP NOZZLE AND THE GAS STATION DEMONSTRATED THE NOZZLE AND THE GAS PUMP WERE WORKING PROPERLY; THERE WAS EVIDENCE OF A RELEVANT DESIGN FLAW IN THE FUEL SYSTEM OF THE BUS; THE NOZZLE MANUFACTURER’S AND THE GAS STATION’S MOTIONS FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
FIREFIGHTER WAS SOLELY RESPONSIBLE FOR THE DELAY IN HOLDING HIS DISCIPLINARY HEARING AND THEREFORE WAS NOT ENTITLED TO BACK PAY FOR THE PRE-HEARING PERIOD OF SUSPENSION (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT AND DEFENDANT’S... DEFENDANT’S OFFER TO PROVIDE FALSE TESTIMONY IN A SEPARATE ACTION IS NOT...