Rodriguez hearing in New York

2025Upon remittitur, the People established at a Rodriguez hearing ( see People v Rodriguez , 79 NY2d 445 ) that the complainant had sufficient familiarity with the defendant so that the complainant's photographic identification of the defendant was merely confirmatory ( see People v Ellis , 198 AD3d 674, 675 ; People v Jacobs , 65 AD3d 594, 595 ).

2025Upon remittitur, the People established at a Rodriguez hearing ( see People v Rodriguez , 79 NY2d 445 ) that the complainant had sufficient familiarity with the defendant so that the complainant's photographic identification of the defendant was merely confirmatory ( see People v Ellis , 198 AD3d 674, 675 ; People v Jacobs , 65 AD3d 594, 595 ).

2019At a Rodriguez hearing — conducted to determine whether such a relationship exists — the People bear the burden of proving that an identification is confirmatory based upon such factors as "the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between the last viewing and the crime, and whether the two individuals had any conversations" ( People v Coleman , 306 AD2d at 550 ; accord People v Casanova , 119 AD3d 976, 980 [2014]).

2019At a Rodriguez hearing — conducted to determine whether such a relationship exists — the People bear the burden of proving that an identification is confirmatory based upon such factors as "the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between the last viewing and the crime, and whether the two individuals had any conversations" ( People v Coleman , 306 AD2d at 550 ; accord People v Casanova , 119 AD3d 976, 980 [2014]).

2021"This type of confirmatory identification exception to the notice and hearing requirements for suggestive pretrial identification 'may be confidently applied where the [identifying witness is a] family member[], friend[] or acquaintance[] or [has] lived [with the defendant] for a time' " ( People v [*2]Sanchez , 75 AD3d 911, 912 [3d Dept 2010], lv denied 15 NY3d 895 [2010], quoting Rodriguez , 79 NY2d at 450 ). "[T]he People are not obligated to call the identifying witness at a Rodriguez hearing" ( People v Graham , 283 AD2d 885, 887 [3d Dept 2001], lv denied 96 NY2d 940 [2001]).

2021"This type of confirmatory identification exception to the notice and hearing requirements for suggestive pretrial identification 'may be confidently applied where the [identifying witness is a] family member[], friend[] or acquaintance[] or [has] lived [with the defendant] for a time' " ( People v [*2]Sanchez , 75 AD3d 911, 912 [3d Dept 2010], lv denied 15 NY3d 895 [2010], quoting Rodriguez , 79 NY2d at 450 ). "[T]he People are not obligated to call the identifying witness at a Rodriguez hearing" ( People v Graham , 283 AD2d 885, 887 [3d Dept 2001], lv denied 96 NY2d 940 [2001]).

2004Following a Rodriguez hearing (see People v Rodriguez, 79 NY2d 445 [1992]), the court properly determined that, based on the prior relationship between the witness and defendant, there was no possibility that the witness could have misidentified defendant (see People v Colon, 307 AD2d 378, 379 [2003], lv denied 100 NY2d 619 [2003]; People v Simmons, 247 AD2d 494, 495 [1998], lv denied 91 NY2d 1013 [1998]).

2004Following a Rodriguez hearing (see People v Rodriguez, 79 NY2d 445 [1992]), the court properly determined that, based on the prior relationship between the witness and defendant, there was no possibility that the witness could have misidentified defendant (see People v Colon, 307 AD2d 378, 379 [2003], lv denied 100 NY2d 619 [2003]; People v Simmons, 247 AD2d 494, 495 [1998], lv denied 91 NY2d 1013 [1998]).

2023The evidence at the Rodriguez hearing established that, in addition to being with defendant throughout the day of the crimes ( cf. People v Coleman , 73 AD3d 1200, 1202 [2d Dept 2010]), the codefendant was familiar with defendant from the neighborhood, seeing him numerous times at a particular corner.

2016When pressed as to the precise number of occasions upon which the Cl and Pops met during that time period, Ruecker testified that the Cl drove other people to Pops’ location to purchase drugs on “[approximately four occasions.” *1327 Upon reviewing Ruecker’s testimony at the Rodriguez hearing—specifically with respect to the Cl’s detailed physical description of Pops and the number of occasions upon which they met within the relatively short period of time preceding the controlled buy—we are satisfied that the People established that the Cl’s relationship with defendant was “more than fleeting

2021"This type of confirmatory identification exception to the notice and hearing requirements for suggestive pretrial identification 'may be confidently applied where the [identifying witness is a] family member[], friend[] or acquaintance[] or [has] lived [with the defendant] for a time' " ( People v [*2]Sanchez , 75 AD3d 911, 912 [3d Dept 2010], lv denied 15 NY3d 895 [2010], quoting Rodriguez , 79 NY2d at 450 ). "[T]he People are not obligated to call the identifying witness at a Rodriguez hearing" ( People v Graham , 283 AD2d 885, 887 [3d Dept 2001], lv denied 96 NY2d 940 [2001]).

2021"This type of confirmatory identification exception to the notice and hearing requirements for suggestive pretrial identification 'may be confidently applied where the [identifying witness is a] family member[], friend[] or acquaintance[] or [has] lived [with the defendant] for a time' " ( People v [*2]Sanchez , 75 AD3d 911, 912 [3d Dept 2010], lv denied 15 NY3d 895 [2010], quoting Rodriguez , 79 NY2d at 450 ). "[T]he People are not obligated to call the identifying witness at a Rodriguez hearing" ( People v Graham , 283 AD2d 885, 887 [3d Dept 2001], lv denied 96 NY2d 940 [2001]).

2005Neither hearing is required in a classic “buy and bust” operation where, as here, a confirmatory identification procedure is immediately conducted by an undercover officer within minutes after the sale of drugs to the undercover officer (see People v Stubbs, 6 AD3d 1109 [2004], lv denied 3 NY3d 663 [2004]; People v Blocker, 309 AD2d 1240 [2003], Iv denied 1 NY3d 568 [2003]; People v Cuthrell, 284 AD2d 982, 983 [2001]).

2004“Such a hearing is not required in a classic ‘buy and bust’ undercover operation where the undercover officer identifies the defendant immediately after the transaction” (People v Cuthrell, 284 AD2d 982, 983 [2001]).

2019At a Rodriguez hearing — conducted to determine whether such a relationship exists — the People bear the burden of proving that an identification is confirmatory based upon such factors as "the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between the last viewing and the crime, and whether the two individuals had any conversations" ( People v Coleman , 306 AD2d at 550 ; accord People v Casanova , 119 AD3d 976, 980 [2014]).

2019At a Rodriguez hearing — conducted to determine whether such a relationship exists — the People bear the burden of proving that an identification is confirmatory based upon such factors as "the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between the last viewing and the crime, and whether the two individuals had any conversations" ( People v Coleman , 306 AD2d at 550 ; accord People v Casanova , 119 AD3d 976, 980 [2014]).

2021With respect to whether the court should have held a Rodriguez hearing, we note that, in general, a trial court must hold an evidentiary hearing before making the determination that defendant is so well known to a witness that " 'suggestiveness' is not a concern" ( People v Gissendanner , 48 NY2d 543, 552 [1979]; see Rodriguez , 79 NY2d at 453 ).

2021With respect to whether the court should have held a Rodriguez hearing, we note that, in general, a trial court must hold an evidentiary hearing before making the determination that defendant is so well known to a witness that " 'suggestiveness' is not a concern" ( People v Gissendanner , 48 NY2d 543, 552 [1979]; see Rodriguez , 79 NY2d at 453 ).

2025Upon remittitur, the People established at a Rodriguez hearing ( see People v Rodriguez , 79 NY2d 445 ) that the complainant had sufficient familiarity with the defendant so that the complainant's photographic identification of the defendant was merely confirmatory ( see People v Ellis , 198 AD3d 674, 675 ; People v Jacobs , 65 AD3d 594, 595 ).

2025Upon remittitur, the People established at a Rodriguez hearing ( see People v Rodriguez , 79 NY2d 445 ) that the complainant had sufficient familiarity with the defendant so that the complainant's photographic identification of the defendant was merely confirmatory ( see People v Ellis , 198 AD3d 674, 675 ; People v Jacobs , 65 AD3d 594, 595 ).

2024A hearing is necessary to determine whether the victim's identification of defendant was confirmatory in nature ( see People v Rodriguez , 79 NY2d 445 [1992]) and, if not, whether the identification procedure was unduly suggestive ( see People v Dixon , 85 NY2d 218 [1995]).

2014While this testimony revealed that the male Cl had some familiarity with defendant, it lacked adequate detail to establish that the two were so well acquainted that the male Cl was “ ‘impervious to police suggestion’ ” (People v Dixon, 85 NY2d 218, 224 [1995], quoting People v Rodriguez, 79 NY2d at 452 ; see People v Coleman, 306 AD2d at 551 ; compare People v Colon, 307 AD2d 378, 379-380 [2003], lv denied 100 NY2d 619 [2003]).

2019In this regard, a Wade hearing testing the reliability of an out-of-court identification "may be dispensed with where the [identifying] witness knows the defendant so well that police suggestiveness is not a concern" ( People v Coleman , 306 AD2d 549, 550 [2003]; see People v Rodriguez , 79 NY2d 445, 449-450 [1992]; People v Carter , 57 AD3d 1017, 1017-1018 [2008], lvs denied 12 NY3d 781 [2009]).

2016“Although the People are not obligated to call the identifying witness at [the] Rodriguez hearing” (People v Graham, 283 AD2d 885, 887 [2001], lv denied 96 NY2d 940 [2001]), they nonetheless must come forward with “sufficient details of the extent and degree of the protagonists’ prior relationship” with one another (id. at 887; see People v Carter, 57 AD3d 1017, 1018 [2008], lv denied 12 NY3d 781 [2009]).

2016As a preliminary matter, we note that it is not clear from the record whether the court granted defendant a Wade hearing; the court merely stated that, because defense counsel was not yet in a position to concede that the identification of defendant was confirmatory, as the People had argued, “we will have an identification hearing.” It is therefore possible that the court intended merely to conduct a Rodriguez hearing to determine whether the identification was confirmatory (see People v Rodriguez, 79 NY2d 445, 449-450 [1992]; People v Green, 70 AD3d 1392, 1392 [2010]).

2016As a preliminary matter, we note that it is not clear from the record whether the court granted defendant a Wade hearing; the court merely stated that, because defense counsel was not yet in a position to concede that the identification of defendant was confirmatory, as the People had argued, “we will have an identification hearing.” It is therefore possible that the court intended merely to conduct a Rodriguez hearing to determine whether the identification was confirmatory (see People v Rodriguez, 79 NY2d 445, 449-450 [1992]; People v Green, 70 AD3d 1392, 1392 [2010]).

2016The testimony of the witness at the Rodriguez hearing established that the witness had known defendant for approximately 20 years (see People v Williams, 101 AD3d 1730 , 1731-1732 [2012], lv denied 21 NY3d 1021 [2013]; People v Whitlock, 95 AD3d 909, 911 [2012], lv denied 19 NY3d 978 [2012]; see generally People v Rodriguez, 79 NY2d 445, 452 [1992]).

2016The testimony of the witness at the Rodriguez hearing established that the witness had known defendant for approximately 20 years (see People v Williams, 101 AD3d 1730 , 1731-1732 [2012], lv denied 21 NY3d 1021 [2013]; People v Whitlock, 95 AD3d 909, 911 [2012], lv denied 19 NY3d 978 [2012]; see generally People v Rodriguez, 79 NY2d 445, 452 [1992]).

2016Although the court conducted a Wade hearing, which ordinarily eliminates the need for a Rodriguez hearing (see People v Quinones, 5 AD3d 1093, 1093 [2004], lv denied 3 NY3d 646 [2004]), 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 ).

2016Although the court conducted a Wade hearing, which ordinarily eliminates the need for a Rodriguez hearing (see People v Quinones, 5 AD3d 1093, 1093 [2004], lv denied 3 NY3d 646 [2004]), 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 ).

2016We 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 [1992]) 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 [2007], lv denied 9 NY3d 846 [2007]).

2016We 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 [1992]) 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 [2007], lv denied 9 NY3d 846 [2007]).

2025We further concluded that the error was "not harmless because, even assuming, arguendo, that the proof of defendant's guilt, without reference to the error, is overwhelming, it cannot be said that 'there is no reasonable possibility that the error might have contributed to defendant's conviction' " ( id. , quoting People v Crimmins , 36 NY2d 230, 237 [1975]).

2025We further concluded that the error was "not harmless because, even assuming, arguendo, that the proof of defendant's guilt, without reference to the error, is overwhelming, it cannot be said that 'there is no reasonable possibility that the error might have contributed to defendant's conviction' " ( id. , quoting People v Crimmins , 36 NY2d 230, 237 [1975]).

2024First, to the extent that Rodriguez seeks to dismiss the instant action, without first moving to vacate the order of reference, which granted a default judgment against her, she is precluded from seeking the affirmative relief of dismissal ( Holubar v Holubar , 89 AD3d 802, 802 [2d Dept 2011] ["In granting the defendant's untimely motion to dismiss the complaint insofar as asserted against her, the Supreme Court improperly, in effect, excused the defendant's default in the absence of a request for such relief"]; McGee v Dunn , 75 AD3d 624, 625 [2d Dept 2010] ["Under such circumstances, the Sup

2024First, to the extent that Rodriguez seeks to dismiss the instant action, without first moving to vacate the order of reference, which granted a default judgment against her, she is precluded from seeking the affirmative relief of dismissal ( Holubar v Holubar , 89 AD3d 802, 802 [2d Dept 2011] ["In granting the defendant's untimely motion to dismiss the complaint insofar as asserted against her, the Supreme Court improperly, in effect, excused the defendant's default in the absence of a request for such relief"]; McGee v Dunn , 75 AD3d 624, 625 [2d Dept 2010] ["Under such circumstances, the Sup

2016Although the court conducted a Wade hearing, which ordinarily eliminates the need for a Rodriguez hearing (see People v Quinones, 5 AD3d 1093, 1093 [2004], lv denied 3 NY3d 646 [2004]), 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 ).

2016Although the court conducted a Wade hearing, which ordinarily eliminates the need for a Rodriguez hearing (see People v Quinones, 5 AD3d 1093, 1093 [2004], lv denied 3 NY3d 646 [2004]), 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 ).

2007The complainant’s testimony at the Rodriguez hearing (see People v Rodriguez, 79 NY2d 445 [1992]), supports the hearing court’s determination that the complainant, who observed the appellant almost every day at school for a period of approximately five months, was sufficiently familiar with the appellant that his show-up identification was merely confirmatory (see Matter of Bruce C., 224 AD2d 685 [1996]; cf. People v Rodriguez, supra; People v Garner, 27 AD3d 764 [2006]; People v Simmons, 247 AD2d 494 [1998]).

2007The complainant’s testimony at the Rodriguez hearing (see People v Rodriguez, 79 NY2d 445 [1992]), supports the hearing court’s determination that the complainant, who observed the appellant almost every day at school for a period of approximately five months, was sufficiently familiar with the appellant that his show-up identification was merely confirmatory (see Matter of Bruce C., 224 AD2d 685 [1996]; cf. People v Rodriguez, supra; People v Garner, 27 AD3d 764 [2006]; People v Simmons, 247 AD2d 494 [1998]).

2019In this regard, a Wade hearing testing the reliability of an out-of-court identification "may be dispensed with where the [identifying] witness knows the defendant so well that police suggestiveness is not a concern" ( People v Coleman , 306 AD2d 549, 550 [2003]; see People v Rodriguez , 79 NY2d 445, 449-450 [1992]; People v Carter , 57 AD3d 1017, 1017-1018 [2008], lvs denied 12 NY3d 781 [2009]).

2016“Although the People are not obligated to call the identifying witness at [the] Rodriguez hearing” (People v Graham, 283 AD2d 885, 887 [2001], lv denied 96 NY2d 940 [2001]), they nonetheless must come forward with “sufficient details of the extent and degree of the protagonists’ prior relationship” with one another (id. at 887; see People v Carter, 57 AD3d 1017, 1018 [2008], lv denied 12 NY3d 781 [2009]).

2025Upon remittitur, the People established at a Rodriguez hearing ( see People v Rodriguez , 79 NY2d 445 ) that the complainant had sufficient familiarity with the defendant so that the complainant's photographic identification of the defendant was merely confirmatory ( see People v Ellis , 198 AD3d 674, 675 ; People v Jacobs , 65 AD3d 594, 595 ).

2025Upon remittitur, the People established at a Rodriguez hearing ( see People v Rodriguez , 79 NY2d 445 ) that the complainant had sufficient familiarity with the defendant so that the complainant's photographic identification of the defendant was merely confirmatory ( see People v Ellis , 198 AD3d 674, 675 ; People v Jacobs , 65 AD3d 594, 595 ).