People v. Jerome C.

¶1Appeal 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 ease 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. 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-eourt 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). Rabin, Acting P. J., Benjamin, Munder, Martuseello and ¡Kleinfeld, JJ., concur.