dissents, with the following memorandum: Under the circumstances herein, I find no reason to hold this appeal in abeyance pending a further hearing on the issue of whether the defendant waived his right to counsel at the lineup (see, People v Havelka, 45 NY2d 636). The People were clearly aware that the defendant had a right to counsel at the lineup (see, People v Coleman, 43 NY2d 222; People v Smith, 120 AD2d 118, lv denied 69 NY2d 750), thereby requiring them to establish that he had waived this right (see, People v Sutton, 47 AD2d 455, 458). Further, the People do not claim that they were deprived of a full opportunity to advance evidence on this issue, and indeed, a sufficient factual record exists so as to allow this court to review this matter (cf., People v Kinchen, 60 NY2d 772, 774).
Accordingly, I would reach this issue, as well as the other issues raised on appeal, at this juncture.