dissents in a memorandum as follows: This conviction should be reversed and a new trial ordered because the police were told by a Judge prior to the lineup that the defendant had counsel. Accordingly, the attorney could not be excluded from the lineup proceedings.
In People v Blake (35 NY2d 331, 340-341), where the Court of Appeals affirmed a conviction for criminal possession of stolen property in the first degree and unauthorized use of a vehicle and held that counsel was not necessary at a lineup held before the filing of an accusatory instrument, the court stated, "Where the accused has counsel known to the law enforcement authorities or there is insufficiently explained delay which prevents him from obtaining counsel as he would on arraignment, and he has not waived the right to counsel, the circumstances may establish his right to counsel at the viewing, the breach of which should result in exclusion.”
In People v Hawkins (55 NY2d 474, 487 [1982]), where the Court of Appeals upheld convictions in four separate cases and held that the State Constitution did not mandate counsel at an investigatory lineup, the court stated, "Although we conclude that the State has no obligation to supply counsel at investigatory lineups, we have previously noted that if a *475suspect already has counsel, his attorney may not be excluded from the lineup proceedings”.
In People v Coates (74 NY2d 244, 249 [1989]), where the Court of Appeals reversed a conviction and held that counsel had been improperly excluded from a lineup, the Court of Appeals stated, "Though law enforcement authorities ordinarily are not required to notify counsel of an impending investigatory lineup absent a specific request to do so, when the police are aware that a criminal defendant is represented by counsel and the defendant explicitly requests the assistance of his attorney, the police may not proceed with the lineup without at least apprising the defendant’s lawyer of the situation and affording him or her an opportunity to appear.”
The foregoing cases all require that the conviction here be reversed, the lineup identification suppressed, a hearing held on independent source and a new trial held. Briefly stated, the defendant was brought to court on an unrelated charge. His attorney on that unrelated charge was told that the defendant would be arrested on the charges for which he was convicted here. His attorney on the unrelated charge asked the Judge presiding to instruct the officers "that [appellant] had counsel and to take no statements from him.” The Judge did so. Once the officers were informed that the defendant had counsel, they could not proceed with the lineup without at least notifying the attorney that it would be held.