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PEOPLE STATE NEW YORK v. JEROME C. (ANONYMOUS) (06/30/69)

June 30, 1969

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
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).

Disposition

The findings of fact are affirmed.

19690630

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