People v. Shippens

Case held, decision reserved and matter remitted to Supreme Court, Erie County, for a hearing, in accordance with the following memorandum: In our view, defendant’s moving papers adequately complied with the dictates of CPL 710.60 (1). Where defendant’s moving papers, though inartfully drafted, nevertheless sufficiently comply with the dictates of CPL 710.60 (1) to raise a tenable issue of fact to support the ground alleged, it is error for the court summarily to deny defendant’s motion to suppress potential identification evidence (People v De Vaughn, 81 AD2d 924, later appeal 95 AD2d 838; People v Carrion, 68 AD2d 827; People v Williams, 46 AD2d 727). A hearing is required to establish whether the one-on-one showup conducted here was constitutionally infirm and also whether there was an independent source for the in-court identification (see, People v Adams, 53 NY2d 241; People v Whisby, 48 NY2d 834, 836; People v Ballott, 20 NY2d 600, 606). The dissenters recite that the trial evidence confirms the conclusion that no improper police conduct occurred. It is, however, improper for an appellate court to make its own finding of an independent source based upon trial testimony (see, People v James, 67 NY2d 662, 664; People v Dodt, 61 NY2d 408, 417; see also, People v Gonzalez, 55 NY2d 720, 721-722, cert denied 456 US 1010). Therefore, it is necessary for the court to conduct an evidentiary hearing on defendant’s motion which sought to suppress the potential identification evidence. The court shall file its report on completion of the hearing (see, People v De Vaughn, 81 AD2d 924, supra). All concur, except Boomer and Pine, JJ., who dissent and vote to affirm, in the following memorandum.