Walter J. Evans, Jr., for Appellant.
Daniel S. Ratner, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed and the case remitted to Supreme Court, Bronx County, for further proceedings in accordance with this memorandum.
Defendant was charged with first degree robbery arising out of a knifepoint street encounter in The Bronx. The complainant identified him out of a photo array. At a hearing to determine whether a Wade hearing was required, the complainant testified that prior to the robbery she had seen the defendant more than ten times in the bodega where she worked, and had seen him more than twenty times in the neighborhood where they both lived. The court cut off cross-examination of the complainant in several relevant respects, and concluded that the photo identification was confirmatory, that CPL § 710.30 notice was not required, and that there was no evidence of impermissible suggestiveness by the police.
Defendant was convicted after a jury trial, and the Appellate Division affirmed the judgment, finding that although the curtailment of cross-examination was error, the complainant's testimony sufficiently established the confirmatory nature of the photo identification (__ AD2d __).
We agree that it was error to restrict cross- examination under these circumstances, because once the complainant was called as a witness for the People at the hearing, defendant had the right to cross-examine her (contrast People v Chipp, 75 NY2d 327). Unlike the Appellate Division, however, we conclude that the error requires a reversal. The issue central to the hearing was the extent of the complainant's prior familiarity with the defendant and that issue became crucial at trial in this single-witness identification case. Thus, the preclusion of an adequate opportunity to cross-examine on that key issue eliminated any supportable basis upon which to find that the photo identification was the product of prior familiarity and, therefore, merely confirmatory (see, People v Newball, 76 NY2d 587; People v Collins, 60 NY2d 214). The case must be remitted for a threshold determination whether a Wade hearing is necessary and such ensuing proceedings in the criminal action as may be necessary.
In view of our resolution of this issue, it is not necessary to address the other issues defendant raises.
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Order reversed and case remitted to Supreme Court, Bronx County for further proceedings in accordance with the memorandum herein. Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock and Bellacosa concur.