People v. Hichez , 29 N.Y.S.3d 787 ( 2016 )

People v Hichez (2016 NY Slip Op 03652)

People v Hichez

2016 NY Slip Op 03652

Decided on May 10, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 10, 2016
Mazzarelli, J.P., Renwick, Saxe, Gische, Kahn, JJ.

1082 2672/13

[*1]The People of the State of New York, Respondent,

v

Abraham Hichez, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), and Davis Polk & Wardwell LLP, New York (Joshua Dugan of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered May 1, 2014, convicting defendant, after a jury trial, of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously reversed, on the law, defendant's motion to preclude identification testimony granted, and the matter remanded for a new trial.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. However, the court erred in finding that the People were not required to provide CPL 710.30(1)(b) notice with regard to the identification testimony of a police officer. His brief observation of defendant leaving the scene of the crime, approximately an hour before the identification, was not "so clear that the identification could not be mistaken," thereby obviating the risk of undue suggestiveness (People v Boyer, 6 NY3d 427, 432 [2006]; see also People v Pacquette, 25 NY3d 575 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 10, 2016

CLERK