Appellate Division: Second Judicial Department

M136846

E/sl

WILLIAM F. MASTRO, A.P.J.

ARIEL E. BELEN

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2008-11463 The People, etc., respondent, v Cesar Flores, appellant. (Ind. No. 1555/07)

DECISION & ORDER ON MOTION

Motion by the respondent to strike a photo array exhibit filed by the appellant on an appeal from a judgment of the Supreme Court, Queens County, rendered November 24, 2008, on the ground that the exhibit is not properly part of the record. By decision and order on motion of this Court dated June 23, 2011, the matter was remitted to the Supreme Court, Queens County, to hear and report on the issue of whether the photo array entered into evidence at the suppression hearing conducted in the above-entitled case on September 25, 2007, was black and white or in color, and the motion was held in abeyance in the interim. The Supreme Court, Queens County, has filed its report dated March 2, 2012.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the report of the Supreme Court, Queens County, dated March 2, 2012, it is

ORDERED that the motion is granted, the photo array exhibit containing the color photographs filed by the appellant and the appellant's brief are stricken, and on or before May 29, 2012, the appellant shall serve and file a replacement brief.

MASTRO, A.P.J., BELEN, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court