SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
November 10, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
THEODORE HOLLOWAY, APPELLANT
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered November 30, 1966, convicting him of robbery in the first degree (two counts), assault in the first degree, assault in the second degree (four counts), possession of weapons as a felony, grand larceny in the second degree and petit larceny, upon a jury verdict, and imposing sentence.
Christ, Brennan, Rabin and Hopkins, JJ., concur; Beldock, P. J., dissents.
Case remitted to the trial court for a hearing as to whether the in-court identification testimony of the complaining witnesses was tainted by any improper showup; and, in the interim, the appeal will be held in abeyance. (See People v. Whitmore, 30 A.D.2d 877; People v. Hill, 22 N.Y.2d 686, 688.)
Beldock, P. J., dissents and votes to affirm the judgment, with the following memorandum:
The principal issue on this appeal is whether the pretrial identification of defendant was so unfair as to be violative of due process. The record discloses that the two victims of the crimes had ample opportunity to observe defendant under good lighting conditions during the commission of the crimes. Thereafter, one of the eyewitnesses identified defendant in the hospital where the witness was recovering from a gunshot wound allegedly inflicted by defendant. In my opinion, there was here "no such uncertainty of identification or lack of physical visual opportunity to see and to remember, as to render the hospital identification 'grossly and unnecessarily suggestive'" (People v. Rivera, 22 N.Y.2d, 453, 455). Moreover, I can find no basis in the record to support the conclusion that the in-court identification may have been tainted by the circumstances of the earlier pretrial identification (cf. People v. Hanley, 32 A.D.2d 1039).
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