(dissenting). I disagree with the majority’s holding that the right to counsel claim is meritorious under the facts of this case and that dismissal of the indictment is the appropriate remedy. The People moved by notice of motion dated March 11, 2009 for an order directing the removal of a saliva sample from defendant and his codefendants for the purpose of DNA analysis. The record indicates that on March 12, 2009, when counsel appeared to set a trial date, defense counsel was given a courtesy copy of the motion and indicated that if his client was not going to agree to provide the sample, he would submit opposition papers. The record also shows that counsel for one of the codefendants did submit opposition papers arguing that the discovery request was not timely and should be denied since the People’s lateness was not justified. On April 30, 2009, defense counsel made an application to be relieved due to difficulty getting paid, which was granted. On the same day, the court issued an order granting the People’s motion for buccal swabs “on consent” with respect to defendant.*37* Also on April 30, 2009, after defendant’s counsel was permitted to withdraw, and the order was signed, defendant appeared before the court without counsel and was informed that the People’s motion for a buccal swab had been granted. Defendant was also informed that arrangements had been made for a County Law article 18-B attorney to take over his representation and that he would meet the new attorney on May 21, 2009. Defendant indicated to the court several times that he would prefer to wait for new counsel before he went forward with the buccal swab. The court instructed defendant that the motion was already decided and there was nothing he or his attorney could do to legally challenge the order at that time. Defendant once more expressed his hesitation to agree to the swab without counsel advising him. The court explained that waiting for new counsel would delay the trial and would not be charged to the People. After being shown a copy of the order, defendant agreed, and the swab was conducted in the courtroom.
In my view, the salient fact here is that prior to the time the defendant claims he was unconstitutionally without counsel, the motion to compel the saliva sample had already been considered by the court and a decision made, granting the motion “on consent” with respect to defendant. There is no dispute that no opposition papers were submitted on behalf of defendant. While the right to counsel undoubtedly attaches during pretrial motion practice, there is no basis to hold that counsel must be present for the physical administration of the already-ordered collection of a saliva sample; nor is there a basis to view the actual collection of the sample as a “critical stage” of the proceedings (see Hurrell-Harring v State of New York, 15 NY3d 8, 20 [2010]). Although defendant argues that he was without counsel during a “pre-DNA-test hearing,” the record is clear that the court had already issued its order and defendant had not been left without counsel during the pendency of the motion, which I would agree was a “critical stage.”
Despite defendant’s attempts to characterize it otherwise, the colloquy that ensued between the court and defendant was not a “critical stage” of the proceedings because the motion had already been decided and there was no indication that the court was reconsidering its ruling. The fact that defendant told the motion court that he “wasn’t aware of the buccal swab” and *38had not spoken to his attorney for “two months,” while troubling, raises an issue that cannot be adequately reviewed here, where the record on appeal does not contain sufficient facts to allow this Court to conduct a record-based review and defendant did not raise this non-record based claim collaterally pursuant to CPL 440.10.
While it clearly would have been more prudent and advisable for the court to have adjourned the swab until new counsel appeared, it cannot be said that the failure to do so amounted to a constitutional violation. Defendant’s argument suggesting that there were defenses to the motion that prior counsel could have raised, but failed to, and that new counsel could have successfully challenged the court’s order and prevented the saliva sample altogether, is based on speculation, especially since we know that counsel for one of the codefendants did oppose the motion on the same timeliness grounds now raised by defendant, and that the objection to the People’s motion was unsuccessful. To the extent defendant wishes to raise an ineffective assistance of counsel claim, this cannot be done under the guise of a right to counsel violation.
Even assuming a right to counsel violation occurred here, the majority’s holding that the appropriate remedy is to vacate defendant’s guilty plea and dismiss the indictment is unsupported. Even counsel for defendant does not go so far as to ask that the indictment be dismissed. Defendant only asks that in the interest of justice this Court fashion a remedy precluding the DNA evidence. While it is unclear whether he is asking for the DNA evidence to be precluded from trial, should the case go to trial, or for the evidence to be precluded from consideration in the proceeding altogether, defendant only argues that preclusion will provide “teeth” to the finding that there was a right to counsel violation. Neither People v Hilliard (73 NY2d 584 [1989]), nor People v Chappelle (121 AD3d 1166 [3d Dept 2014], lv denied 24 NY3d 118 [2015]) stands for the broad proposition that any pretrial deprivation of the right to counsel requires dismissal of the indictment. Both of those cases involved right to counsel violations that occurred at or around the time of grand jury proceedings. It follows logically that any indictment secured while a defendant’s right to counsel was being violated is tainted and dismissal of the indictment would be warranted. This is clearly very different from the instant scenario, where the alleged violation occurred almost one year after defendant was indicted and during proceedings related to *39a discovery motion. I submit that the alleged violation does not taint or call the validity of the indictment into question, and dismissing it, even without prejudice to the People representing any appropriate charges to another grand jury, is not an appropriate remedy.
Acosta, J.P., and Gesmer, J., concur with Manzanet-Daniels, J.; Kapnick, J., dissents in a separate opinion in which Andrias, J., concurs. .Judgment, Supreme Court, Bronx County, rendered September 28, 2012, reversed, on the law, the pleas vacated, and the indictment dismissed without prejudice to the People to represent any appropriate charges to another grand jury.
The motion was also granted “on consent” as to one of the other co-defendants and “over objection” with respect to the codefendant who had submitted opposition papers.