Opinion
November 16, 1987
Appeal from the Supreme Court, Kings County (Grajales, J.).
Ordered that the judgment is affirmed.
The defendant, who was incarcerated on unrelated charges, was positively identified from a photographic array by a witness to the robbery. Thereafter, the police obtained an ex parte order to secure the defendant's presence at a lineup. The defendant, for the first time on appeal, challenges the validity of that order because the People failed to notify him of their pending application. He claims that he was denied his right to due process and that his conviction must be reversed.
While we agree that the defendant was entitled to notice of the People's application for the order (see, Matter of Abe A., 56 N.Y.2d 288, 296; Matter of Pidgeon v. Rubin, 80 A.D.2d 568; Matter of Santucci, 117 Misc.2d 500), he never raised this issue as a ground for suppression at the hearing and thereby failed to preserve it for appellate review (see, People v. MacKay, 98 A.D.2d 732). Moreover, on February 7, 1984, the police notified the attorney who represented the defendant on the unrelated charges that the order would be executed on February 9, giving the attorney sufficient time to challenge its validity if he so desired. On February 9, 1984, both the defendant and his attorney freely and fully participated in the lineup procedure.
We have reviewed the defendant's argument that he received ineffective assistance of counsel and find that the trial court properly denied his application for the assignment of new counsel (see, People v. Medina, 44 N.Y.2d 199). Furthermore, the record reveals that the performance of counsel during the hearing provided the defendant meaningful representation (see, People v Benn, 68 N.Y.2d 941; People v. Baldi, 54 N.Y.2d 137). Mollen, P.J., Brown, Rubin and Spatt, JJ., concur.