People v. Dorant

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldman, J.), rendered May 5, 1992, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on that branch of the defendant’s omnibus motion which was to suppress identification testimony on the ground that the defendant was deprived of his right to counsel at the lineups, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, is to file its report with all convenient speed.

The defendant contends that the identification testimony should have been suppressed because he was deprived of his right to counsel at the lineups (see, People v LaClere, 76 NY2d 670). Whether this contention has merit depends, in part, on the credibility of the testimony of the defendant and of the police witness at the suppression hearing. Although the court denied the defendant’s motion, it failed to make findings of fact which would permit appellate review of the issue (see, CPL 710.60 [4]; People v Rumph, 190 AD2d 698). Because the Judge who conducted the hearing has retired, we remit the matter for a new hearing, which shall be limited to the issue of whether the defendant’s right to counsel at the lineups was violated.

We find that the hearing record is sufficient to establish that the procedures employed by the police at the lineups were not suggestive. Therefore, we reject the defendant’s contention that the court erred in denying the defendant’s request to compel the civilian witnesses to testify at the hearing (see, People v Chipp, 75 NY2d 327, cert denied 498 US 833; People v Richard, 172 AD2d 569).

We do not reach any of the defendant’s remaining contentions at this juncture. O’Brien, Santucci and Florio, JJ., concur.