
    The People of the State of New York, Respondent, v Edward Herndon, Appellant.
    [629 NYS2d 699]
   Case held, decision reserved and matter remitted to Erie County Court for further proceedings in accordance with the following Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a forged instrument in the second degree (two counts), grand larceny in the third degree, and attempted grand larceny in the third degree. On appeal, defendant contends, inter alia, that the identification testimony should have been suppressed as the product of an unnecessarily suggestive photo array procedure. Defendant contends that the men depicted in the photographs differed from him in age, skin tone, and facial hair. Because the People are unable to produce the photo array, we are unable to review that issue. Consequently, the matter must be remitted to Erie County Court to reconstruct the photo array (see, People v Rivera, 39 NY2d 519; People v Kenefick, 144 AD2d 997, lv denied 73 NY2d 979). (Appeal from Judgment of Erie County Court, D’Amico, J.—Criminal Possession Forged Instrument, 2nd Degree.) Present—Denman, P. J., Pine, Wesley, Balio and Boehm, JJ.  