People v. Banks

73 A.D.2d 907, 424 N.Y.S.2d 439, 1980 N.Y. App. Div. LEXIS 9813

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1980
• Status: Published

Opinions

Judgment of the Supreme Court, Bronx County, rendered June 9, 1978, convicting defendant upon a jury verdict of robbery in the first degree (three counts) and sentencing him to concurrent terms of 12 ti to 25 years, reversed, on the law, the motion granted to the extent of suppressing the lineup identification testimony of witnesses Ms. Inniss and Ms. Gomez, and a new trial ordered. Following the arrest of defendant on an unrelated robbery in Manhattan, he appeared in two lineups relative to two Bronx supermarket robberies (one robbery on June 15, 1977 and the other on July 22, 1977) of which he was a suspect. The first lineup was staged on September 1, 1977 (the date of the Manhattan arrest). The second took place on October 4, 1977 pursuant to an order of the Supreme Court, Bronx County, issued October 3, 1977 directing defendant’s removal from Manhattan to The Bronx to appear in the lineup. Although defendant had an attorney in the Manhattan case, he was without counsel in the Bronx cases until after the lineup of October 4, 1977 had occurred. Defendant was indicted for the Bronx crimes on October 13, 1977. We agree with defendant, and the District Attorney concedes, that defendant was entitled to counsel at the lineup of October 4, 1977. The right to counsel attaches at the commencement of an adversary judicial criminal proceeding (Kirby v Illinois, 406 US 682, 688-690; People v Blake, 35 NY2d 331, 339-340; People v Sugden, 35 NY2d 453, 461). The order for production of defendant in Bronx County to appear in the lineup commenced such a proceeding against him and activated his right to counsel (People v Lloyd Winston G., 45 NY2d 962, 963-964; People v Coleman, 43 NY2d 222, 225). We are unpersuaded that the District Attorney’s failure to inquire whether defendant waived his right to counsel at that lineup was attributable to defendant’s failure to object to the identifications on the ground of denial of counsel. There is sufficient in the record to show defendant at the Wade hearing raised such objection. Unacceptable, too, is the District Attorney’s contention that the holding of the lineup of October 4, 1977 without the presence of counsel was harmless error. Concededly, there was some positive evidence against defendant. However, had the testimony of Ms. Inniss (a cashier at the supermarket when the June 15, 1977 robbery occurred) and the testimony of Ms. Gomez (a cashier there when the July 22, 1977 robbery took place) as to their identification of defendant in the lineup of October 4, 1977 been suppressed, as it should have been, the result of the trial may have been different. Mr. Simmons, the security guard who identified defendant at the Wade hearing and trial as having committed the robbery of June 15, 1977, had a record of armed robbery. Two of the witnesses to the July 22, 1977 crime (Ms. Ryan, a cashier at the supermarket and Mr. Deritis, manager) who testified at the trial, could not identify defendant. Ms. Flynn, a bookkeeper at the supermarket when the July 22, 1977 robbery occurred, also a witness at the trial, was unable prior to the trial to identify a photograph of defendant as he appeared in the lineup of October 4, 1977 and furthermore her in-court identification of defendant was perhaps prompted by a suggestive in-court identification procedure. Thus, it cannot be said beyond a reasonable doubt that the error, which was of constitutional dimension, did not contribute to the conviction of defendant (see People v Almestica, 42 NY2d 222, dissenting opn, pp 227-229; see, also, People v Crimmins, 36 NY2d 230). In view of our disposition it is not necessary to discuss the other points raised by defendant. Concur—Birns, J. P., Fein, Markewich and Ross, JJ.