
    [785 NE2d 726, 755 NYS2d 705]
    The People of the State of New York, Respondent, v Jose L. Rodriguez, Appellant.
    Decided January 16, 2003
    
      APPEARANCES OF COUNSEL
    
      Edward J. Nowak, Public Defender, Rochester (Janet C. Somes of counsel), for appellant.
    
      Howard R. Relin, District Attorney, Rochester Wendy Evans Lehmann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting to County Court for further proceedings in accordance with this memorandum and, as so modified, affirmed.

The Appellate Division erred in applying the harmless error rule where defendant pleaded guilty after the erroneous denial without a hearing of his motion to suppress certain identification testimony (see People v Sampson, 73 NY2d 908 [1989]; People v Grant, 45 NY2d 366 [1978]). The case should be remitted to County Court for a hearing to determine whether Officer Alvarado’s identification was confirmatory. If, after that hearing, the court concludes that the People have not sustained their burden of proving the procedure was confirmatory, defendant’s guilty plea should be vacated and further proceedings should be had as the circumstances may warrant. However, if the court concludes that the identification procedure was confirmatory, the judgment should be amended to reflect that result.

Chief Judge Kaye and Judges Smith, Ciparick, Wesley, Rosenblatt, Graffeo and Read concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, etc.  