Opinion
June 22, 1992
Appeal from the County Court, Suffolk County (Hurley, J.).
Ordered that the judgment is affirmed.
The defendant contends that the trial court improperly compelled him to attend a court-ordered lineup without the presence of counsel (see, People v. Settles, 46 N.Y.2d 154, 161). We disagree. The court's order, directing the defendant to appear in the lineup, was made after the defendant had engaged in obstructive and dilatory behavior, during which he, while represented by counsel, refused to appear in a lineup, and, thereafter, discharged his attorney. Under the circumstances, the defendant's request to proceed pro se, and his having submitted two motions pro se, established that the defendant knowingly and intelligently waived his right to counsel (see, People v. Sawyer, 57 N.Y.2d 12, cert denied 459 U.S. 1178; People v. McIntyre, 36 N.Y.2d 10).
Furthermore, we find that the circumstances surrounding the court-ordered lineup were fair. The defendant, by refusing to cooperate, created the conditions which caused the police to hold him in place, and thus waived his right to claim error as a result (see, People v. Cobb, 161 A.D.2d 721; People v. Price, 120 A.D.2d 690). Additionally, we note that prior to the lineup, and when the defendant was under a court order to supply a hair sample for comparison purposes, the defendant shaved his head. In an effort to conduct the fairest possible lineup, the law enforcement authorities in charge placed stocking caps over all the lineup participants, including the defendant.
The defendant contends that the court erred in refusing to either dismiss the indictment or hold a hearing in response to his motion for dismissal on the ground that prosecutorial misconduct deprived him of a fair trial and due process of law. However, the facts set forth in the sworn affidavits and affirmations submitted to the trial court in connection with the defendant's motion to dismiss the indictment constituted a sufficient basis upon which the court could decide that motion without a hearing (see, People v. Gruden, 42 N.Y.2d 214; People v Agosto, 123 A.D.2d 637). The interview conducted by an investigator from the District Attorney's office of potential defense witnesses did not rise to a level of prosecutorial misconduct so as to deprive the defendant of a fair trial and due process of law (see, People v. Friedgood, 58 N.Y.2d 467, 470-472; cf., People v. McRoy, 121 A.D.2d 566).
Upon our review of the record, we find that the defendant was not denied his statutory right to a speedy trial. The total time chargeable to the People is within the permitted six calendar months (see, People v. Jones, 105 A.D.2d 179, affd 66 N.Y.2d 529).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Rosenblatt, J.P., Miller, Copertino and Pizzuto, JJ., concur.