In re Anthony B. , 622 N.Y.S.2d 550 ( 1995 )

—In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (Hepner, J.), dated September 9, 1993, which upon a fact-finding order of the same court, dated July 19, 1993, made after a hearing, finding that the appellant had committed acts, which, if committed by an adult, would have constituted the crimes of robbery in the second degree (two counts), grand larceny in the fourth degree, unauthorized use of a vehicle in the first degree, criminal possession of a weapon in the fourth degree, criminal possession of stolen property in the fifth degree, and menacing in the third degree, adjudged him to be a juvenile delinquent and placed him in the custody of the New York State Division for Youth for a period of nine months. The appeal brings up for review the fact-finding order dated July 19, 1993.

Ordered that the matter is remitted to the Family Court, Kings County, to hear and report on the branch of the appellant’s omnibus motion which was to suppress identification testimony, and the appeal is held in abeyance in the interim. The Family Court, Kings County, is to file its report with all convenient speed.

As conceded by the People, and we agree, it was error to deny the branch of the appellant’s omnibus motion which sought suppression of the identification testimony without first conducting a hearing. The appellant’s motion papers were sufficient under Family Court Act § 330.2 and CPL 710.60 (1) to entitle him to a hearing on the issue, particularly since the People did not dispute that a showup identification procedure had been conducted. Under these circumstances, summary denial of the branch of the appellant’s omnibus motion which was to suppress the identification testimony was improper, and a hearing on the admissibility of the identification testimony must be conducted (see, People v Vitetta, 118 AD2d 885). Sullivan, J. P., Miller, Copertino, Joy and Friedmann, JJ., concur.