People v. Burney

249 A.D.2d 84, 671 N.Y.S.2d 240, 1998 N.Y. App. Div. LEXIS 4028

Opinion

—Judgments, Supreme Court, New York County (Frederic Berman, J.), rendered January 3, 1996, convicting defendant, after a jury trial, of robbery in the first degree, and, upon his guilty plea, of robbery in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 12 to 24 years, unanimously affirmed.

Defendant’s motion to suppress identification testimony was properly denied. Defendant was not denied his right to counsel at his investigatory lineup, since the police efforts to contact defendant’s requested attorney, consisting of leaving a message on the attorney’s answering machine and then waiting three hours for the attorney to return the call before proceeding with the lineup, were reasonable under all the attendant circumstances, including the presence of the three eyewitnesses (see, People v Coates, 74 NY2d 244, 249;. People v Irick, 243 AD2d 652; People v Cherry, 161 AD2d 185, lv denied 76 NY2d 854). The officers also attempted, unsuccessfully, to secure the Legal Aid Society to serve as counsel for defendant at the lineup. Concur — Lerner, P. J., Sullivan, Milonas, Ellerin and Andrias, JJ.