People v. Burts , 156 A.D.2d 1010 ( 1989 )

Case held, decision reserved and matter remitted to Erie County Court for a hearing, in accordance with the following memorandum: The court properly denied defendant’s request for substitution of counsel because defendant did not establish good cause for such relief (see, People v Medina, 44 NY2d 199, 207-209). The evidence was sufficient to support defendant’s conviction under count 2 of the indictment because the victim of the robbery testified that defendant brandished a knife and threatened to kill him prior to stealing his wallet (see, People v Pena, 50 NY2d 400, 408, cert denied 449 US 1087; People v Smith, 142 AD2d 619, Iv denied 73 NY2d 860). Given the nature of the crimes for which defendant was convicted and defendant’s criminal record, the sentence defendant received is not excessive.

The court erred, however, in finding that the photo identification procedure was not impermissibly suggestive. The joint identification by two witnesses of defendant’s photograph out of a series of mug shots was improper (People v Gonzalez, 145 AD2d 923, Iv denied 73 NY2d 1015). In our view the court’s erroneous ruling lulled the People into complacency or otherwise interfered with their opportunity to present evidence that there was an independent basis for the victims’ identification and, accordingly, we remit the matter for a hearing to determine whether there was an independent basis for the victims’ in-court identification (see, People v Giles, 73 NY2d 666, 671; People v Crandall, 69 NY2d 459, 464-465, rearg denied 70 NY2d 748; People v Dodt, 61 NY2d 408, 417; People v Payton, 51 NY2d 169, 177; People v Havelka, 45 NY2d 636, 642-643; People v Green, 33 NY2d 496; People v Malinsky, 15 NY2d 86).

All concur, except Callahan, J. P., who dissents and votes to reverse, in the following memorandum.