PEOPLE v. PEREZ (1998)

Judgment, Supreme Court, New York County (Bernard Fried, J., at hearing;  Nicholas Figueroa, J., at jury trial and sentence), rendered November 9, 1994, convicting defendant of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 7 to 14 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Issues concerning the reliability of identification testimony were properly presented to the jury and we see no reason to disturb its determinations.

Defendant's motion to suppress identification testimony was properly denied.   Defendant had no right to counsel at this investigatory lineup (People v. LaClere, 76 N.Y.2d 670, 563 N.Y.S.2d 30, 564 N.E.2d 640;  People v. Coates, 74 N.Y.2d 244, 544 N.Y.S.2d 992, 543 N.E.2d 440), since none of the circumstances that are required to exist before the limited right to counsel at such a lineup may be recognized were present in this case.   There was no evidence that the investigating officer knew of defendant's outstanding arrest warrant, and no indication that defendant was represented by counsel in the prior matter, much less that the officer was aware of such representation.   Moreover, although defendant ultimately refused to talk to police, and asked to speak to an attorney, such request “did not constitute an explicit request for the presence of an attorney at the lineup” (People v. Orraca, 237 A.D.2d 148, 149, 655 N.Y.S.2d 7, lv. denied 90 N.Y.2d 861, 661 N.Y.S.2d 188, 683 N.E.2d 1062).

MEMORANDUM DECISION.