Opinion
Argued September 6, 1990
Decided October 11, 1990
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Herbert Kramer, J.
Charles J. Hynes, District Attorney (Seth M. Lieberman and Jay M. Cohen of counsel), for appellant.
David Crow and Philip L. Weinstein for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was in custody at Rikers Island on an unrelated charge on which he was represented by counsel. The prosecutor obtained an ex parte order directing defendant's appearance in a lineup in this case (see, People v Coleman, 43 N.Y.2d 222). There are undisturbed findings sufficient to support the conclusion that defendant requested the presence of his attorney at the lineup on two occasions — once while he was detained at the Kings County courthouse in connection with his arraignment on the unrelated charge, and then later after he was returned to Rikers Island. There is no evidence of any communication between defendant and counsel, or even that counsel was aware of defendant's request. Under these circumstances, counsel's statements and actions did not constitute a waiver of defendant's right to have counsel at the lineup (see, People v Yut Wai Tom, 53 N.Y.2d 44, 53-54).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed in a memorandum.