PEOPLE v. TORO (2002)

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J. at summary denial of Dunaway hearing;  Michael Gross, J. at Wade hearing;  Edward Davidowitz, J. at plea and sentence), rendered January 8, 2001, as amended March 12, 2001, convicting defendant of robbery in the first degree (two counts) and attempted robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 13 years, 13 years and 7 years, respectively, with 5 years of post-release supervision, unanimously affirmed.

 Defendant's motion to suppress identification testimony was properly denied.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).   Defendant was not deprived of his limited right to counsel at an investigatory lineup (see People v. Wilson, 89 N.Y.2d 754, 658 N.Y.S.2d 225, 680 N.E.2d 598).   Even assuming that counsel had actually entered the case, the record establishes that the attorney who had been assigned to represent defendant on an unrelated matter was notified by the police that there would be a lineup, but declined to attend (see People v. Sime, 254 A.D.2d 183, 687 N.Y.S.2d 78, lv. denied 92 N.Y.2d 1038, 684 N.Y.S.2d 503, 707 N.E.2d 458).   The evidence supports the hearing court's findings, inter alia, that while the attorney instructed the police not to question defendant, she did not request to attend the lineup and did not give the police her phone number or any other means of contacting her.

 Defendant's requests for a Dunaway hearing were properly denied since defendant's papers did not raise an issue of fact as to probable cause for his arrest (see People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017).   Defendant's assertions of innocent conduct at the time of his arrest did not controvert the specific information that was provided by the People concerning the basis for that arrest, namely, a photographic identification of defendant as the perpetrator of a past robbery, and did not assert any other basis for suppression (see People v. Jones, 95 N.Y.2d 721, 723 N.Y.S.2d 761, 746 N.E.2d 1053;  People v. Soto, 284 A.D.2d 158, 725 N.Y.S.2d 848, lv. denied 96 N.Y.2d 924, 732 N.Y.S.2d 642, 758 N.E.2d 668).   In any event, there is no indication that there was any viable Fourth Amendment issue (see People v. Lebron, 238 A.D.2d 150, 656 N.Y.S.2d 201, lv. denied 90 N.Y.2d 895, 662 N.Y.S.2d 438, 685 N.E.2d 219, cert. denied 522 U.S. 1032, 118 S.Ct. 635, 139 L.Ed.2d 614).