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

The PEOPLE of the State of New York, Respondent, v. Phillip FRIESON, Defendant-Appellant.

Decided: January 25, 2007

SAXE, J.P., MARLOW, NARDELLI, SWEENY, CATTERSON, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Yael V. Levy of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Megan Tallmer, J. at hearing;  Michael A. Gross, J. at jury trial and guilty plea), rendered May 25, 2005, convicting defendant, after a jury trial, of robbery in the first degree and, upon his guilty plea, of robbery in the first degree and possession of an imitation pistol (Administrative Code of City of N.Y. § 10-131[g] ), and sentencing him, as a second felony offender, to an aggregate term of 13 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).

Defendant was not entitled to counsel at the investigatory lineup involving the robberies, since counsel never entered the matters under investigation and defendant did not request an attorney at the lineup (see People v. Mitchell, 2 N.Y.3d 272, 274-275, 778 N.Y.S.2d 427, 810 N.E.2d 879 [2004] ).   Although defendant was represented on the imitation pistol charge, that charge did not have the type of relationship to the robbery charges that would trigger defendant's right to counsel at the lineup (see People v. Grant, 91 N.Y.2d 989, 991, 676 N.Y.S.2d 117, 698 N.E.2d 946 [1998];  People v. Cohen, 90 N.Y.2d 632, 638-642, 665 N.Y.S.2d 30, 687 N.E.2d 1313 [1997];  People v. Coleman, 43 N.Y.2d 222, 226, 401 N.Y.S.2d 57, 371 N.E.2d 819 [1977] ).   The imitation pistol charge arose from a different incident, against a different victim, and occurred five days and eight days, respectively, after the two robberies.   It is of no significance that, in other proceedings involving a different context, the People argued that the imitation pistol incident was admissible as proof of the robberies under People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901];  in any event, in each instance, defendant opposed the People's Molineux theory and the court rejected it.

The two evidentiary rulings challenged by defendant on appeal were proper exercises of discretion.

We perceive no basis for reducing the sentence.