Opinion
April 8, 1996
Appeal from the Supreme Court, Queens County (O'Dwyer, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered to be preceded by an independent source hearing regarding the in-court identifications of the defendant by Fernando M. and Carmen D.
Viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant stole a motor vehicle the value of which exceeded $100 ( see, People v. Morris, 218 A.D.2d 673; Penal Law § 155.30, 165.45 Penal).
However, while we agree with the hearing court's holding that the defendant was denied his right to counsel at the pretrial lineup procedure ( see, People v. Bing, 76 N.Y.2d 331; People v Vella, 21 N.Y.2d 249; People v. Horn, 161 A.D.2d 603), we nevertheless hold that the court erred in proceeding to admit incourt identification testimony without first conducting an independent source hearing ( see, People v. Jackson, 74 N.Y.2d 787; People v. Coates, 74 N.Y.2d 244; People v. Wong, 223 A.D.2d 568; People v. Dorant, 220 A.D.2d 767; People v. Sheffield, 185 A.D.2d 256). Accordingly, the defendant's conviction must be reversed and the matter remitted for a new trial on all counts to be preceded by an independent source hearing ( see, People v Baghai-Kermani, 84 N.Y.2d 525; People v. Burts, 78 N.Y.2d 20; People v. Wong, supra).
In light of our determination, we need not reach the defendant's remaining contention. Mangano, P.J., Miller, Altman and Friedmann, JJ., concur.