Opinion
January 8, 1996
Appeal from the Supreme Court, Kings County (McKay, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction for rape in the first degree under count six of Kings County Indictment No. 5497/92, vacating the sentence imposed thereon, the complainant Donna M.'s testimony regarding her lineup identification is suppressed, and a new trial on count six of the indictment is ordered, to be preceded by an independent source hearing regarding Donna M.'s in court identification; as so modified, the judgment is affirmed.
Based upon the particular facts of this case, we agree with the defendant's claim on appeal that he was denied his right to counsel at the pretrial lineup procedure at which he was identified by the complainant Donna M. As a result Donna M.'s lineup identification should have been suppressed (see, People v LaClere, 76 N.Y.2d 670; People v Cross, 216 A.D.2d 407). Since Donna M. never testified at the Wade hearing, a de novo hearing to determine whether or not she had an independent source for her in court identification must be held prior to a new trial (see, People v Burts, 78 N.Y.2d 20). Under the circumstances, where the only evidence identifying the defendant as one of the individuals who raped the complainant Donna M. was the lineup and in court identifications of the defendant by Donna M., we reject the People's contention that this error was harmless beyond a reasonable doubt (see, People v James, 218 A.D.2d 709; cf., People v Cross, supra).
In light of our decision, we need not reach the remaining issue raised by the defendant. Miller, J.P., Thompson, Sullivan and Joy, JJ., concur.