In re Jonitta C. ( 1995 )

Appeal from the order of the Family Court, Bronx County (Stewart H. Weinstein, J.), entered June 27, 1994, which, after a fact-finding hearing, adjudicated appellant a juvenile delinquent, based upon a finding that appellant committed acts, which if committed by an adult, would constitute petit larceny and criminal possession of stolen property in the fifth degree, and placed her in the custody of the New York State Division for Youth for 12 months, held in abeyance and the matter remanded to the Family Court for a Wade hearing regarding the victim’s identification testimony.

Shortly after the alleged underlying incident, the investigating detective drove the victim to Evander Childs High School, where he believed appellant was a student, for the purpose of taking the victim through the classrooms to see if she recognized anyone. The detective had telephoned appellant and told her to meet him at the school that day. As they were approaching the school, the victim told the detective that she saw appellant standing in front of the school and, as a result of that identification, the detective arrested appellant.

The People concede that in light of the recent decision of the Court of Appeals in People v Dixon (85 NY2d 218), a Wade hearing is warranted inasmuch as appellant was the subject of a police-sponsored procedure conducted for the purpose of obtaining an identification. Accordingly, we hold the appeal in abeyance and remand the matter to the Family Court for a Wade hearing.

Motion, insofar as reargument is sought, granted and, upon reargument the unpublished decision and order of this Court (Appeal No. 53957) entered on February 7, 1995 is recalled and vacated and a new memorandum released simultaneously herewith; the motion insofar as it seeks leave to appeal to the Court of Appeals is denied. Concur—Ellerin, J. P., Kupferman, Asch, Nardelli and Williams, JJ.