Gary S. v. Houston

— 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 NY2d 97 , 108; Matter of Abe A., 56 NY2d 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. (Article 78 proceeding.) Present — Dillon, P. J., Doerr, Boomer, Moule and Schnepp, JJ.