Opinion
November 15, 1989
Appeal from the Monroe County Court, Celli, J.
Present — Dillon, P.J., Callahan, Green, Pine and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was charged in a felony complaint with robbery in the first degree and other crimes. While the felony complaint was pending in Rochester City Court, but before the case was presented to a Grand Jury, an order was entered in Monroe County Court compelling defendant to appear in a lineup. Defendant contends that County Court lacked jurisdiction because CPL 240.40 (2) does not authorize entry of such an order when a felony complaint is the pending accusatory instrument. The argument is without merit, and we reject decisions at nisi prius holding to the contrary (see, e.g., People v Steiner, 103 Misc.2d 844). It is well established that a suspect may be ordered to appear in a lineup, or provide other nontestimonial evidence, when "the People establish (1) probable cause to believe the suspect has committed the crime, (2) a `clear indication' that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable." (Matter of Abe A., 56 N.Y.2d 288, 291; see, People v London, 124 A.D.2d 254, 256, lv denied 68 N.Y.2d 1001; see also, Matter of Pidgeon v Rubin, 80 A.D.2d 568.)