PEOPLE v. DAVIS

Appeal by defendant from a judgment of the Supreme Court Kings County (Kay, J.), rendered October 15, 1981, convicting him of robbery in the first degree and criminal use of a firearm in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of defendant's motion to suppress identification testimony. ¶ Case remitted to Criminal Term for further proceedings consistent herewith, and appeal held in abeyance in the interim. Criminal Term shall file its report with all convenient speed. ¶ At a Wade hearing, Criminal Term denied defendant's request to call the complainant as a witness with respect to whether he had seen defendant in custody at the precinct prior to the exhibition of a photo array and lineup. On the record before us, we cannot say the request, insofar as it related to a potential taint in the identification process, was made in palpably bad faith. Accordingly, the court improperly denied the application ( People v Gilliam, 37 N.Y.2d 722, revg 45 A.D.2d 744 on dissenting opn. of Hopkins, J.; People v Murray, 79 A.D.2d 993). Thus, the Wade hearing must be reopened to receive testimony relevant to the issue of potential taint. Lazer, J.P., Niehoff, Boyers and Lawrence, JJ., concur.