People v. Johnson

84 A.D.2d 715, 444 N.Y.S.2d 5, 1981 N.Y. App. Div. LEXIS 15870

Opinion

Judgment, Supreme Court, Bronx County (Kleiman, J., at hearing, and Holland, J., at plea and sentence), rendered December 6, 1978, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree (Penal Law, §§ 110.00,160.10), and sentencing him to a term of imprisonment thereon, is unanimously affirmed. The only issue which gives us pause on this appeal is whether the defendant’s presence at the lineup was itself the product of an illegal seizure of the defendant — and whether, for that reason, the pretrial lineup identification should have been suppressed. (Cf. United States v Crews, 445 US 463; People v Pleasant, 76 AD2d 244; People v Brnja, 50 NY2d 366, 374.) But the issue of the illegality of the initial seizure or arrest of defendant preceding his presence at the lineup was never raised at the suppression hearing and the evidence at the hearing was not addressed to that issue. (Cf. People v Tutt, 38 NY2d 1011; People v Martin, 50 NY2d 1029.) Defendant, with full advice of counsel, entered into a negotiated plea to a lesser crime (with a lesser sentence exposure) than the crime which was in fact committed here. In the circumstances, we do not think the interest of justice requires us to remand the matter for a new evidentiary hearing to explore the issue advanced for the first time by defendant’s appellate counsel. (Cf. People v Navarro, 61 AD2d 534, 536.) Concur — Kupferman, J. P., Sullivan, Silver-man, Bloom and Fein, JJ.