Opinion
October 30, 1969
Appeal from the Erie County Court.
Present — Marsh, J.P., Gabrielli, Moule, Bastow and Henry, JJ.
Judgment unanimously affirmed. Memorandum: We do not agree with the finding of the court following the preliminary hearing that defendant was advised of his right to have counsel present at the lineup identification procedure or that he waived counsel at the lineup. We find beyond a reasonable doubt however that the testimony as to the lineup identification could not have contributed to the conviction and that the admission of such evidence constituted harmless constitutional error. (See Chapman v. California, 386 U.S. 18.) The identifying witness gave a detailed and accurate description of the defendant to the police prior to her identification of him at the lineup and she was in an excellent position to observe him at various times in the course of the commission of the alleged crime extending over a period of about two hours.