PEOPLE v. ROMERO

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

The PEOPLE of the State of New York, Respondent, v. Angel ROMERO, Defendant-Appellant.

Decided: March 29, 2001

ROSENBERGER, J.P., WILLIAMS, ANDRIAS, WALLACH and SAXE, JJ. T. Charles Won, for Respondent. Luke Martland, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Daniel FitzGerald, J.), rendered February 23, 1999, convicting defendant of burglary in the first degree and attempted robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life and 16 years to life, respectively, unanimously affirmed.

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

 Defendant's suppression motion addressed to the identification procedure was properly denied.   The right to counsel for lineup purposes generally does not attach prior to the commencement of formal proceedings (People v. LaClere, 76 N.Y.2d 670, 563 N.Y.S.2d 30, 564 N.E.2d 640).   There had been no accusatory instrument filed in this case.   There is no basis upon which to disturb the court's credibility determinations, which are supported by the record.   The credible evidence established that, while the police were aware that defendant had counsel in another matter, defendant never requested that his counsel be present at the lineup.   Since defense counsel never entered the proceeding and defendant did not request his presence, defendant's right to counsel at the lineup did not attach (see, People v. LaClere, supra ).