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

368
KA 12-01596
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARRELL HOFFMAN, ALSO KNOWN AS DURRELL,
DEFENDANT-APPELLANT.


BRIDGET L. FIELD, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Alex
R. Renzi, J.), rendered May 16, 2012. The judgment convicted
defendant, upon his plea of guilty, of gang assault in the first
degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Monroe County,
for further proceedings in accordance with the following memorandum:
Defendant appeals from a judgment convicting him upon his plea of
guilty of gang assault in the first degree (Penal Law § 120.07). We
agree with defendant that his waiver of the right to appeal is not
valid (see People v Huddleston, 134 AD3d 1458, 1458-1459, lv denied 27
NY3d 966; see generally People v Lopez, 6 NY3d 248, 256). Considering
the prosecutor’s plea colloquy and defendant’s written waiver of the
right to appeal, we conclude that the record as a whole “fails to
establish that defendant understood that the right to appeal is
separate and distinct from those rights automatically forfeited upon a
plea of guilty” (Huddleston, 134 AD3d at 1459 [internal quotation
marks omitted]; see Lopez, 6 NY3d at 256). Furthermore, Supreme Court
did not make “clear that the waiver of the right to appeal was a
condition of [the] plea, not a consequence thereof” (People v
Guantero, 100 AD3d 1386, 1387, lv denied 21 NY3d 1004 [internal
quotation marks omitted]).

     We agree with defendant that, during the suppression hearing, the
court erred in precluding defendant from cross-examining the police
investigator on the issue whether “Witness #1” was sufficiently
familiar with defendant in order to render the single photo
identification of defendant by that witness “merely confirmatory”
(People v Williamson, 79 NY2d 799, 801). Although the court conducted
a Wade hearing, which ordinarily eliminates the need for a Rodriguez
hearing (see People v Quinones, 5 AD3d 1093, 1093, lv denied 3 NY3d
                                 -2-                           368
                                                         KA 12-01596

646), we conclude that the court’s error during the suppression
hearing renders a Rodriguez hearing necessary in this case (see
Williamson, 79 NY2d at 800-801). We therefore hold the case, reserve
decision, and remit the matter to Supreme Court for a hearing to
determine whether the identification by the subject witness was truly
confirmatory in nature (see People v Rodriguez, 79 NY2d 445, 451-453)
and, if the court determines that the identification was not
confirmatory, it must further determine whether the single photo
identification procedure employed with the subject witness was unduly
suggestive (see generally People v Kairis, 37 AD3d 1070, 1071, lv
denied 9 NY3d 846). Because no determination has yet been made that
the single photo identification procedure at issue was unduly
suggestive, the appeal may be held in abeyance for a postjudgment
hearing (see People v Redding, 47 AD3d 953, 953-954).




Entered:   June 10, 2016                       Frances E. Cafarell
                                               Clerk of the Court
