Opinion
May 11, 1990
Appeal from the Erie County Court, Wolfgang, J.
Present — Doerr, J.P., Boomer, Green, Lawton and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's primary claim on appeal from convictions for second degree murder and related crimes is that his right to counsel was violated and, therefore, a map locating the victim's body and incriminating statements he gave to the police should have been suppressed. We disagree. Defendant's reliance on People v. Rogers ( 48 N.Y.2d 167) and People v. Bartolomeo ( 53 N.Y.2d 225) is misplaced because the right to counsel rule stated therein does not apply where, as here, defendant was being represented on an appeal from a previous criminal conviction (People v. Colwell, 65 N.Y.2d 883, 885; see also, People v. Robles, 72 N.Y.2d 689, 698). Defendant's contention that the statements and map were involuntarily made is belied by the record. Defendant's argument that he was in custody unsupported by probable cause was not raised before the hearing court and is not properly before us on this appeal (see, People v. Coleman, 56 N.Y.2d 269, 274). In any event, defendant was properly arrested upon revocation of his bail bond (see, CPL 530.80, [2]).
Addressing some of defendant's remaining claims, we conclude that a witness's in-court identification was not the product of an impermissibly suggestive lineup. The participants in the lineup shared physical characteristics reasonably similar to those of the defendant and that is all that is required (see, People v. Lundquist, 151 A.D.2d 505, 506). In any event, the witness had an independent basis to support her testimony because she twice viewed defendant at close range and accurately described him to the police. Consecutive sentencing was proper because the intentional murder and the attempted rape involved separate acts (see, Penal Law § 70.25; People v Tarnowski, 148 A.D.2d 1001, lv denied 74 N.Y.2d 669). The sentence was not excessive given the brutal nature of the crimes. On this record we conclude that defendant was provided meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 147), and that the verdict was supported by legally sufficient evidence and that it was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). We have considered defendant's remaining claims and find them lacking in merit.