Opinion
February 28, 1983
Present — Dillon, P.J., Doerr, Boomer, Moule and Schnepp, JJ.
Application unanimously denied and petition dismissed, without costs. Memorandum: In this CPLR article 78 proceeding in the nature of prohibition, petitioner contends that respondent, a County Court Judge, acted in excess of his jurisdiction when he granted an order directing the petitioner to appear in a lineup. Petitioner's sole argument before us is that the order was granted without a sufficient showing of "`probable cause to believe that the suspect [petitioner] has committed the crime,'" and "`a "clear indication" that relevant material evidence will be found'" ( People v. Moselle, 57 N.Y.2d 97, 108; Matter of Abe A., 56 N.Y.2d 288, 291). For the reasons stated in the memorandum of County Court, we determine that probable cause was shown. We determine also that there is a clear indication that relevant material evidence will be found. Petitioner claims that evidence obtained at a prospective lineup will be tainted by a suggestive showup previously conducted by the police. Although the lineup evidence may be subject to a motion to suppress, it is nevertheless relevant and material. Its admissibility cannot be decided here, but must await a motion to suppress should an indictment ensue.