Opinion
October 26, 1987
Appeal from the Supreme Court, Kings County (Aiello, J.).
Ordered that the appeal is held in abeyance and the matter is remitted to Supreme Court, Kings County, to hear and report, after a de novo suppression hearing, on that branch of the defendant's omnibus motion which was to suppress evidence.
We find that the defendant's constitutional right to the assistance of counsel as well as his fundamental right to confront and cross-examine prosecution witnesses were necessarily violated when the hearing court ordered that the suppression hearing proceed despite the fact that the defendant's counsel was not present in the courtroom and notwithstanding the consent of the Assistant District Attorney to adjourn the proceeding pending the appearance of counsel (see, People v. Spears, 64 N.Y.2d 698).
We further find that the hearing court acted improvidently in denying the defense counsel's request to reopen the suppression hearing so as to enable him to cross-examine the prosecution witness who had testified in his absence, in which request the prosecutor joined.
In order to insure that the fundamental rights of a defendant will be safeguarded, the law affords an accused an absolute right to be present, with counsel, during crucial stages in a criminal proceeding (see, People v. Ciaccio, 47 N.Y.2d 431, 436). Error of a constitutional dimension, therefore, occurred when the hearing court refused to adjourn the suppression hearing and proceeded in the absence of defense counsel (see, People v. McGuinness, 9 N.Y.2d 690; People v. Di Salvo, 19 A.D.2d 747; People v. McManus, 17 Misc.2d 247).
Accordingly, as the People concede, a de novo suppression hearing is warranted and the instant appeal is held in abeyance pending that hearing. Since we are not suppressing any evidence at this juncture, reversal of the judgment appealed from pursuant to the principle announced in People v. Coles ( 62 N.Y.2d 908) is not warranted at this time. Mollen, P.J., Eiber, Kunzeman and Spatt, JJ., concur.