PEOPLE v. MOORE (1998)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Damon MOORE, Appellant.

Decided: November 02, 1998

Before MANGANO, P.J., MILLER, THOMPSON and LUCIANO, JJ.

M. Sue Wycoff, New York City (Elizabeth Sack Felber, of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Sholom J. Twersky, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Koch, J.), rendered May 16, 1996, convicting him of burglary in the first degree, robbery in the first degree, robbery in the second degree, grand larceny in the fourth degree (two counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The hearing court properly refused to suppress the identification testimony. The police officer who conducted the lineup made several calls to the defendant's attorney before proceeding with the lineup. Under these circumstances, the defendant was not denied the right to counsel when the police proceeded in the attorney's absence (see, People v. Irick, 243 A.D.2d 652, 663 N.Y.S.2d 246; People v. McRae, 195 A.D.2d 180, 607 N.Y.S.2d 624).

MEMORANDUM BY THE COURT.

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