PEOPLE v. COOK (1998)

Judgment, Supreme Court, New York County (Richard Carruthers, J., at suppression hearing;  Carol Berkman, J., at jury trial and sentence), rendered October 30, 1996, convicting defendant of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 4 to 8 years, unanimously affirmed.

 Defendant's motion to suppress identification testimony was properly denied.   Since neither defendant nor the attorney representing him on another case requested counsel's presence at the lineup, the right to counsel did not attach (People v. Foy, 212 A.D.2d 446, 447, 622 N.Y.S.2d 937, lv. denied 85 N.Y.2d 938, 627 N.Y.S.2d 1000, 651 N.E.2d 925).   A review of the lineup photos confirms the court's determination that, except for one individual, differences in height and weight between defendant and the fillers were minimized by the fact that all participants were seated, and that otherwise all participants appeared sufficiently similar in physical characteristics so that there was no substantial likelihood that defendant would be singled out for identification (People v. Edmonds, 223 A.D.2d 455, 637 N.Y.S.2d 71, lv. denied 88 N.Y.2d 984, 649 N.Y.S.2d 391, 672 N.E.2d 617).

 The record refutes defendant's claim that the court prohibited his counsel from issuing a subpoena for a proposed witness.   Further, the court appropriately exercised its discretion in denying defendant's application for a court-ordered subpoena, since defendant's offer of proof indicated that he sought production of the witness to explore general credibility issues and to conduct mid-trial discovery (see, People v. Wallace, 239 A.D.2d 272, 658 N.Y.S.2d 843, lv. denied 90 N.Y.2d 912, 663 N.Y.S.2d 524, 686 N.E.2d 236).

We have considered and rejected defendant's additional claims.

MEMORANDUM DECISION.