SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 30, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JEROME C. (ANONYMOUS), APPELLANT
Appeal from a judgment of the County Court, Nassau County, rendered July 1, 1968, which adjudged appellant a youthful offender, after a non-jury trial to which he had consented, and imposed sentence. Judgment reversed, on the law, and case remitted to the County Court, Nassau County, for a new trial before a jury.
Rabin, Acting P. J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.
With respect to appellant's prime claim of error, we hold that the statutory requirement of consent to a trial without a jury for eligibility for youthful offender treatment (Code Crim. Pro., § 913-g, subd. 3; § 913-h) is unconstitutional (People v. Michael A. C. [ Anonymous ], 32 A.D.2d 554). With respect to appellant's additional claim of error, we hold that a "pre-indictment" lineup procedure constitutes a critical stage of the criminal prosecution, at which the defendant is ordinarily entitled to the aid of counsel (United States v. Wade, 388 U.S. 218
, 231-234; Stovall v. Denno, 388 U.S. 293
, 298; Gilbert v. California, 388 U.S. 263
, 272-274). However, where, as at bar, the testimony concerning lineup identification was surplusage, in light of the clear and convincing in-court identification of appellant, the error may be disregarded under section 542 of the Code of Criminal Procedure (People v. Baskerville, 32 A.D.2d 555).
The findings of fact are affirmed.
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