Opinion
March 9, 1995
Appeal from the Supreme Court, New York County (Carol Berkman, J.).
The action of the police in questioning defendant a second time while waiting for a lineup to proceed to arraignment did not deprive him of his right to counsel since his arraignment was not imminent at the time of the interrogation and the questioning was not designed to deprive him of the opportunity to be represented by counsel (see, People v. Wilson, 56 N.Y.2d 692; People v Bowens, 129 A.D.2d 297, lv denied 70 N.Y.2d 749).
The court properly refused to charge the lesser included offenses of robbery in the third degree and burglary in the second degree since there was no reasonable view of the evidence to suggest that defendant did not use a knife during the incident (see, People v. Scarborough, 49 N.Y.2d 364). Finally, the contention that the trial court marshaled the evidence in an unbalanced fashion is unpreserved (CPL 470.05) and review in the interest of justice is unwarranted, since the charge, as a whole, properly explained the application of the law to the facts of the case in an unbiased and even handed manner (CPL 300.10; People v. Saunders, 64 N.Y.2d 665).
Concur — Ellerin, J.P., Rubin, Ross, Nardelli and Tom, JJ.