Opinion
Argued September 11, 1978
Decided November 2, 1978
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, BERNARD DUBIN, J.
Paul McAloon, Howard N. Spiegler and William E. Hellerstein for appellant.
John J. Santucci, District Attorney (Bruce E. Whitney of counsel), for respondent.
MEMORANDUM.
In People v Coleman ( 43 N.Y.2d 222) we held that an order directing a defendant to appear in a lineup was "`sufficiently "judicial" in nature, not unlike arraignment or the issuance of an arrest warrant, so that a right to counsel exists at "critical stages" held after that order is issued'" (id., at p 225 quoting from People v Sugden, 35 N.Y.2d 453, 461). Hence, appellant had the right to the presence of counsel at the lineup, the denial of which requires suppression of the identification made at that time.
While Coleman also recognized that a defendant could waive his right to counsel in his attorney's absence, there is no evidence of such a waiver here and the People do not claim that appellant did so.
Inasmuch as the error is of constitutional magnitude, a reversal and a new trial is required unless it can be said beyond a reasonable doubt that the error did not contribute to the conviction (People v Almestica, 42 N.Y.2d 222; People v Crimmins, 36 N.Y.2d 2310). The evidence here, as the People in fairness concede, was far short of the requisite standard.
However, although there was only one identifying witness and his testimony concerning the lineup must be suppressed, we do not dismiss the indictment. The trial court found that his original observations at the scene of the crime provided an untainted independent source for his in-court identification and there is no basis upon which to overturn that factual finding (see People v Ramos, 42 N.Y.2d 834; People v Cobenais, 39 N.Y.2d 968; People v Ballott, 20 N.Y.2d 600).
Finally, it is not to be assumed, from the fact that our vote to reverse makes it unnecessary to determine whether the point has been preserved for review, that we find it was proper for the prosecution, in disregard of the trial court's ruling, to cross-examine defendant on another pending charge primarily to suggest a propensity to commit the crime for which he was being tried (see People v Mayrant, 43 N.Y.2d 236, 239; People v Sandoval, 34 N.Y.2d 371, 377).
The order of the Appellate Division should be reversed and a new trial ordered.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order reversed, etc.