Opinion
April 5, 1999
Appeal from the Supreme Court, Queens County (Roman, J.).
Ordered that the judgment is, reversed, on the law, and a new trial is ordered, to be preceded by an independent source hearing.
After remittitur of this case for a hearing on the issue of whether the defendant waived his right to counsel at a lineup at which the defendant appeared pursuant to a court order, the Supreme Court found, and the People concede, that the defendant did not waive his right to have counsel present at the lineup. Accordingly, reversal is mandated (see, People v. Coleman, 43 N.Y.2d 222), and a new trial is ordered. An independent source hearing is to precede the new trial, as the only identification witness did not testify at the Wade hearing (see, People v. Smith, 221 A.D.2d 485).
In view of the foregoing, we need not reach the defendant's remaining contentions.
S. Miller, J. P., Ritter, Altman and McGinity, JJ., concur.