Second Department Reverses Conviction After Reargument
Appellate Advocates client John Pena was convicted of first degree assault (two counts) and attempted first-degree robbery and sentenced to 22 years of incarceratioin. At the lineup conducted shortly after the incident, Pena was the only person in a bright red shirt, the article of clothing identified by the complainant as having been worn by the perpetrator. Following the suppression hearing, at which the complainant did not testify, the court denied suppression of the lineup. The complainant made an in-court identification at trial, and Pena was convicted.
On appeal, Appellate Advocates argued, inter alia, that the lineup was suggestive and that the Second Department should reverse the conviction and remand the case for a new trial to be preceded by an independent source hearing, since the complainant never testified at the original suppression hearing. On December 10, 2014, the Second Department agreed that the lineup was suggestive, but held the appeal in abeyance and remanded the case to the trial court for an independent source hearing at which the complainant could testify.
In a motion to reargue, Appellate Advocates pointed out that under People v. Burts, 78 N.Y.2d 20 (1991), the only available remedy was reversal of Pena’s conviction and remand for a new trial to be preceded by an independent source hearing. On August 26, 2015, the Second Department granted reargument, vacated its prior decision, reversed Pena’s conviction, and remanded for a new trial to be preceded by an independent source hearing.
Patty Pazner of Appellate Advocates prepared the appellate brief, and Mark Vorkink argued the appeal in court and wrote the motion to reargue.