        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

410
KA 10-02355
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MARQUIL L. ADAMS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered November 29, 2010. The appeal was held by
this Court by order entered June 15, 2012, decision was reserved and
the matter was remitted to Supreme Court, Erie County, for further
proceedings (96 AD3d 1588). The proceedings were held and completed.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted to be
preceded by a new hearing on defendant’s motion to suppress
identification testimony.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the first degree (Penal Law § 160.15
[4]) and robbery in the second degree (§ 160.10 [1]). We previously
held the case, reserved decision, and remitted the matter to Supreme
Court to determine whether testimony concerning the pretrial
identification by the robbery victim from a photo array should be
suppressed as the fruit of an illegal detention or arrest (People v
Adams, 96 AD3d 1588, 1589). Upon remittal, the court concluded that
the victim’s pretrial identification should be suppressed as the fruit
of an illegal detention or arrest. Inasmuch as the identification of
defendant by the victim was critical to the prosecution and there was
no evidence at the suppression hearing to permit a determination
whether the in-court identification had an independent source,
defendant is “entitled to a new trial to be preceded by a hearing as
to whether there was an independent basis for the identification
testimony of the [robbery victim]” (People v Fletcher, 115 AD2d 293,
294-295; see People v Coates, 74 NY2d 244, 250; People v Dodt, 61 NY2d
408, 417).

     Contrary to defendant’s contention, he is not entitled to
dismissal of the indictment (see Dodt, 61 NY2d at 418). Defendant
                                 -2-                           410
                                                         KA 10-02355

failed to preserve for our review his further contention that certain
other evidence should have been suppressed as the alleged fruit of his
illegal detention or arrest (see generally People v Watson, 90 AD3d
1666, 1667, lv denied 19 NY3d 868), and we decline to exercise our
power to review that contention as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).

     Finally, we do not address the People’s contention that the
court’s determination upon remittal was erroneous and that the
conviction should be affirmed. “CPL 470.15 (1) limits our
jurisdiction to a determination of any question of law or issue of
fact involving error which may have adversely affected the appellant.
Since we are reviewing a judgment on the defendant’s appeal, and the
issue of whether the [identification testimony was the fruit of an
illegal detention or arrest] was not decided adversely to him, we are
jurisdictionally barred from considering that issue” (People v Harris,
93 AD3d 58, 66, affd 20 NY3d 912; see People v Concepcion, 17 NY3d
192, 195).




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
