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People v. Brown

62 N.Y.2d 743 Court N.Y. Decision date 1984-05-10 English

Judges Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

Contents

Majority

p. 743
The People of the State of New York, Respondent, v Henry Brown, Appellant.
Argued May 7, 1984;
decided May 10, 1984
p. 744

Headnote

APPEARANCES OF COUNSEL
Andrew E. Abraham and William E. Hellerstein for appellant.
Elizabeth Holtzman, District Attorney {Allan P. Root of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified and the case remitted for a new suppression hearing.

A blind Judge should not preside at a hearing where, as in this case, because of an inability to see, the Judge is unable to evaluate a critical exhibit — a photograph of the contested lineup — without calling upon another person to describe it to him. Under these circumstances the Judge should have recused himself, as the defendant requested, and the denial of the motion constituted an abuse of discretion as a matter of law.

If the defendant’s motion to suppress is denied, an amended judgment should be entered reflecting that determination. However, if the court grants the defendant’s motion in whole, or in part, it should take further action consistent with its determination including, if appropriate, the granting of a new trial.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

p. 745
Order modified and case remitted to Supreme Court, Kings County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.