PEOPLE v. MITCHELL (2002)

Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered April 30, 1998, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him to concurrent terms of 3 to 9 years, unanimously affirmed.

Defendant's suppression motion was properly denied.   The record supports the court's finding that the photographs in the photo array were sufficiently similar so that defendant was not singled out for identification (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).   There was no violation of defendant's limited right to counsel at his investigatory lineup (see Matter of Jamal C., 75 N.Y.2d 893, 554 N.Y.S.2d 470, 553 N.E.2d 1018;  compare People v. LaClere, 76 N.Y.2d 670, 563 N.Y.S.2d 30, 564 N.E.2d 640).   While the evidence established that the police were aware that defendant had an attorney on an unrelated case, that attorney did not enter the proceedings and neither defendant nor his mother ever made an unequivocal request that the attorney attend the lineup (see People v. Hicks, 69 N.Y.2d 969, 516 N.Y.S.2d 648, 509 N.E.2d 343).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning identification and credibility.