Opinion
October 22, 1998
Appeal from the Supreme Court, New York County (Dorothy Cropper, J.).
It is well settled that "a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved by having been specifically raised in a suppression motion or at trial" ( People v. Kinchen, 60 N.Y.2d 772, 773; see also, People v. Banks, 53 N.Y.2d 819). Here, defendant argued at the pretrial suppression hearing that he was deprived of his right to counsel at the court-ordered lineup because, even though his attorney in this case agreed to it being conducted in his absence, the police never tried to contact another attorney assigned to defend him in an unrelated Bronx case. Thus, in view of the fact that the defendant never raised the issue of whether there was a valid waiver, a claim now made for the first time on appeal, the People were not put on notice that they had to address the issue. We therefore remand the matter to the trial court for a hearing at which the People may present whatever evidence they have pertaining to that issue ( see, People v. Williams, 146 A.D.2d 661, 662; People v. McCrimmon, 133 A.D.2d 350, 351, appeal after remand 142 A.D.2d 606).
Concur — Milonas, J. P., Rosenberger, Ellerin and Andrias, JJ.