Opinion
March 6, 1984
Appeal from the Cayuga County Court, Contiguglia, J.
Present — Dillon, P.J., Hancock, Jr., Denman, Green and Moule, JJ.
Judgment unanimously reversed, on the law and facts, and a new trial granted. Memorandum: Defendant was convicted by a jury verdict after a retrial (see People v Mackie, 77 A.D.2d 778) of four counts of rape in the first degree. He argues that the court should have granted his motion to suppress a statement taken by the police and testimony pertaining to voice and lineup identifications upon the ground that at the time of the police interrogation and the identification procedures, he was not accorded his right to representation by counsel (see People v Samuels, 49 N.Y.2d 218; see, also, People v Banks, 53 N.Y.2d 819). The statement was taken and the identification procedures were held on November 28, 1979 after criminal proceedings had commenced with the filing of a felony complaint and defendant's formal arrest. Because the case is still on appellate review, Samuels must be applied retrospectively (see People v Pepper, 53 N.Y.2d 213, cert. den. 454 U.S. 967). There is no evidence of exigent circumstances such as would excuse the holding of the identification procedures in the absence of counsel (see People v Hawkins, 55 N.Y.2d 474, 487), and the testimony should have been excluded (see United States v Wade, 388 U.S. 218; People v Hawkins, supra). Because the victim was the only witness to identify defendant, we cannot view the erroneous admission of the strong corroboration of the accuracy of her identification as harmless beyond a reasonable doubt (see People v Crimmins, 36 N.Y.2d 230, 237; compare People v Adams, 53 N.Y.2d 241, 252). We reject the People's contention that defendant is precluded from urging the Samuels point because it was not raised at the time of argument of the prior appeal, which took place subsequent to the Samuels decision. Our reversal was on other grounds and defendant objected on the basis of People v Samuels ( supra) at the retrial. Moreover, the constitutional right to counsel is fundamental and its denial may, in any event, be raised for the first time on appeal (see People v Banks, supra, pp 820-821). ¶ Because a new trial is required under the Samuels rule, we need not reach other grounds urged for reversal. ¶ We hold that defendant is entitled to a Sandoval hearing. In the event defendant is convicted after a retrial, the sentencing court should hold a new hearing (CPL 400.20) if it contemplates imposing a persistent felony offender sentence (Penal Law, § 70.10, subd 2).