173 A.D.2d 562 | N.Y. App. Div. | 1991
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Groh, J.), rendered December 20, 1984, convicting him of attempted robbery in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial (Balbach, J.), after a hearing, of those branches of the defendant’s omnibus motion which were to suppress identification testimony.
Ordered that the judgment is reversed, on the law and the facts, the plea is vacated, that branch of the defendant’s omnibus motion which was to suppress testimony concerning the lineup identification is granted, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.
Upon review of the evidence adduced at the suppression hearing, we find that the defendant was deprived of his right to counsel at the lineup. Prior to the conduct of the lineup, the defendant told the police that he was represented by an attorney, and wanted his attorney present at the lineup. When the defendant’s attorney called the police precinct in response to an earlier call placed by the defendant, he told the police that he would be unable to attend that day because he was out of town and requested that the lineup be held the next day so that he could be present. The defense counsel’s request was denied. The police proceeded with the lineup, at which the defendant was identified as a participant in the robbery of a Queens beauty salon.
It is well settled that an accused does not have a right to counsel at investigatory lineups, as a matter of Federal or State constitutional law (see, People v Coates, 74 NY2d 244, 248; People v Hernandez, 70 NY2d 833, 835). However, if a suspect already is represented by counsel, his attorney may not be excluded from the lineup proceedings (see, People v Hawkins, 55 NY2d 474, 487, cert denied 459 US 846; People v Blake, 35 NY2d 331, 338). The police have no obligation to notify counsel or to suspend the proceedings for counsel to be present if "the delay would result in significant inconvenience to the witnesses or would undermine the substantial advan
In view of our determination, we do not address the defendant’s claim with respect to the excessiveness of his sentence. Thompson, J. P., Bracken, Lawrence and Eiber, JJ., concur.