Ordered that the case is remitted to the Supreme Court, Kings County, to hear and report on the issue of whether the police obtained a valid waiver of the defendant's right to counsel at the lineup, and for a new Wade hearing, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, shall file its findings of fact and conclusions of law with all convenient speed.
Testimony adduced at the Wade hearing indicated that the defendant's presence at a lineup had been secured by a court order. The defendant testified that he had been at Rikers Island on the day of the lineup; on his way from the jail to the precinct, he asked his detective escorts for his attorney. When detectives notified the attorney of the lineup, he refused to attend. No testimony was solicited concerning whether the defendant affirmatively waived his attorney's presence because the defendant did not raise the issue at the hearing.
Since the defendant's presence at the lineup was secured by a court order, he had a right to counsel at the lineup (see, People v Coleman, 43 N.Y.2d 222), but there was no testimony adduced that the defendant ever waived his right to counsel. This issue must be resolved before the defendant's appeal can be determined (see, People v McCrimmon, 133 A.D.2d 350, 351). While the defendant did not raise the issue at the suppression hearing, it can be heard for the first time on appeal (see, People v Kinchen, 60 N.Y.2d 772, 773). As the record is incomplete, we must remit the matter to Criminal Term for a hearing on the issue (see, People v McCrimmon, supra, at 351).
Moreover, our review of the record reveals that the court should have granted the defendant's request to reopen the Wade hearing after it was disclosed that the complainant had examined a photographic array on the night the crime was committed and had failed to identify the defendant's photograph.
We do not pass on any other issues. Brown, J.P., Lawrence, Kooper and Spatt, JJ., concur.