People v. C.

• Decision Date: 30 June 1969
• Citation: 303 N.Y.S.2d 218,32 A.D.2d 840
• Parties: The PEOPLE, etc., Respondent, v. Jerome C. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 218

303 N.Y.S.2d 218

32 A.D.2d 840

The PEOPLE, etc., Respondent, v. Jerome C. (Anonymous), Appellant.

Supreme Court, Appellate Division, Second Department.

June 30, 1969.

Before RABIN, Acting P.J., and BENJAMIN, MUNDER, MARTUSCELLO and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

Appeal from a judgment of the County Court, Nassau County, rendered July 1, 1968, which adjudged appellant a youthful offender, after a nonjury 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. The findings of fact are affirmed.

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.Proc. § 913--g, subd. 3, § 913--h) is unconstitutional (People v. Michael A.C. (Anonymous), 32 A.D.2d 554, 300 N.Y.S.2d 816, dec. April 21, 1969).

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, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Stovall v. Denno, 388 U.S. 293, 298, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Gilbert v. California, 388 U.S. 263, 272--274, 87 S.Ct. 1951, 18 L.Ed.2d 1178). 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, 300 N.Y.S.2d 124, dec. April 21, 1969).