Opinion
May 13, 1991
Appeal from the Supreme Court, Queens County (Groh, J.).
Ordered that the judgment is reversed, on the law and the facts, the plea is vacated, that branch of the defendant's omnibus motion which was to suppress testimony concerning the lineup identification is granted, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.
Upon review of the evidence adduced at the suppression hearing, we find that the defendant was deprived of his right to counsel at the lineup. Prior to the conduct of the lineup, the defendant told the police that he was represented by an attorney, and wanted his attorney present at the lineup. When the defendant's attorney called the police precinct in response to an earlier call placed by the defendant, he told the police that he would be unable to attend that day because he was out of town and requested that the lineup be held the next day so that he could be present. The defense counsel's request was denied. The police proceeded with the lineup, at which the defendant was identified as a participant in the robbery of a Queens beauty salon.
It is well settled that an accused does not have a right to counsel at investigatory lineups as a matter of Federal or State constitutional law (see, People v Coates, 74 N.Y.2d 244, 248; People v Hernandez, 70 N.Y.2d 833, 835). However, if a suspect already is represented by counsel, his attorney may not be excluded from the lineup proceedings (see, People v Hawkins, 55 N.Y.2d 474, 487, cert denied 459 U.S. 846; People v Blake, 35 N.Y.2d 331, 338). The police have no obligation to notify counsel or to suspend the proceedings for counsel to be present if "the delay would result in significant inconvenience to the witnesses or would undermine the substantial advantages of a prompt identification confrontation" (People v Hawkins, supra, at 487). Moreover, "when the police are aware that a criminal defendant is represented by counsel and the defendant explicitly requests the assistance of his attorney, the police may not proceed with the lineup without at least apprising the defendant's lawyer of the situation and affording him or her an opportunity to appear" (People v Coates, supra, at 249). In the instant case, the lineup was conducted nearly seven months after the crime took place, and, therefore, the concern about prompt identification confrontations expressed in People v Hawkins (supra) was absent. Nor is there any indication in the record that the one-day delay in the lineup requested by the defense counsel would have caused significant inconvenience to the witness in this case who viewed it (see, People v Hawkins, supra). Accordingly, the suppression court erred in denying that branch of the defendant's motion which was to suppress the lineup identification on the ground that his right to counsel was violated (see, People v Davis, 172 A.D.2d 555). In reaching this determination, we note that there was no indication in the record that the prosecution caused a delay in the filing of the accusatory instrument for the purpose of depriving the defendant of his right to have counsel present at the viewing of the lineup (see, People v Horn, 161 A.D.2d 603, 604; cf., People v Collins, 136 A.D.2d 720). We agree with the hearing court that the eyewitness had an independent basis for an in-court identification of the defendant in the event of a trial. However, because the defendant's plea of guilty was the product of an erroneous suppression ruling with respect to the lineup that may have contributed to the defendant's decision to plead guilty, it must be vacated (see, People v Grant, 45 N.Y.2d 366, 379-380; People v Ramos, 40 N.Y.2d 610, 618-619; People v Johnson, 157 A.D.2d 802, 804).
In view of our determination, we do not address the defendant's claim with respect to the excessiveness of his sentence. Thompson, J.P., Bracken, Lawrence and Eiber, JJ., concur.