Opinion
July 10, 1995
Appeal from the Supreme Court, Kings County (Barasch, J.).
Ordered that the judgment is affirmed.
The defendant contends that he was deprived of his right to counsel at a lineup. However, the record demonstrates that the defense counsel participated in setting up the lineup, suggesting to the defendant where to sit and objecting to his clothing. Although the defense counsel was not present in the viewing room for the identification of the defendant by one witness, there is no indication as to why she was not present. Nor does the record reveal whether counsel's absence was due to police interference, or whether or not she was present for the identifications of the defendant by the other four witnesses. Accordingly, the record is insufficient to permit appellate review of the defendant's claim that he was deprived of his right to counsel at the lineup (see, People v. Kinchen, 60 N.Y.2d 772; People v. Neal, 205 A.D.2d 711).
The court's refusal to give a more detailed identification charge does not warrant reversal. The identification evidence here was overwhelming and no alibi evidence was presented (see, People v. Rodriguez, 161 A.D.2d 737; cf., People v. Arcarola, 96 A.D.2d 1081). Bracken, J.P., Balletta, Pizzuto and Krausman, JJ., concur.