People v. Pickett

71 A.D.2d 575, 418 N.Y.S.2d 619, 1979 N.Y. App. Div. LEXIS 12768

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1979
• Status: Published

Opinions

Judgment,Supreme Court, Bronx County, rendered December 17, 1976, convicting defendant, on his plea of guilty to the crime of robbery in the first degree, and sentencing him to an indeterminate term of imprisonment of from 6 to 12 years, affirmed. Defendant was indicted along with a codefendant for two counts of robbery in the first degree and one count of criminal possession of a weapon in the second degree. The victim gave a detailed description of the robbers to the police. The detective who was assigned to the case saw the defendant by chance in the police precinct, in custody, on an unrelated robbery charge in which he had counsel. He realized that the defendant fit the description provided by the victim and he arranged a lineup in which the defendant was permitted to select his place in the lineup. The defendant was identified by the victim and on the basis of his and other witnesses’ testimony, the Court determined that the out-of-court identification was valid. There is no dispute that on the facts adduced at the hearing there was probable cause for the police to place the defendant in a lineup. The defendant herein was not represented by counsel during the lineup and the Trial Justice denied suppression because the lineup was conducted during the investigatory or prearraignment stage, finding that counsel was not required. (Kirby v Illinois, 406 US 682; People v Blake, 35 NY2d 331.) Defendant’s first point on appeal is that the police had no probable cause for a lineup. We come to a contrary conclusion. Defendant concedes that the arrest, which brought him to the precinct on the day in question, was lawful. The description that complainant gave to the police, the description of the crime, and its location, gave the police sufficient probable cause to suspect defendant in this case. Clearly, since defendant was already in police custody on an unrelated charge, placing him in a lineup for the first robbery presents a much lesser intrusion on his legal rights than an arrest or a detention for the limited purpose of investigation. (People v Perel, 34 NY2d 462.) The dissent asserts that People v Coleman (43 NY2d 222) mandates that when a defendant is held in custody on an unrelated charge he may not be placed in a lineup without being given the opportunity to have counsel present. We disagree. In Coleman (supra), the defendant’s presence was secured pursuant to a court order of removal, which triggered the accused’s right to counsel. (People v Sugden, 35 NY2d 453.) Here the right to counsel did not attach since no adversary judicial proceedings were initiated either by formal charge, preliminary hearing, indictment, information or arraignment. The matter was still in the investigative stage (Kirby v Illinois, supra, p 689). Since no court order was required to produce the defendant at the lineup, the right to counsel had not been triggered. (People v Coleman, supra.) Concur—Sullivan, Bloom, Markewich and Ross, JJ.