Opinion
June 13, 1988
Appeal from the Supreme Court, Queens County (O'Dwyer, J.).
Ordered that the judgments are affirmed.
Those branches of the defendant's motions which were to suppress his confessions with respect to both indictments and identification testimony with respect to the robbery indictment were properly denied. The defendant's claim that the police lacked probable cause to arrest with respect to the robbery case was not raised in the hearing court and, therefore, is not preserved for appellate review (see, CPL 470.05; People v Martin, 50 N.Y.2d 1029). In any event, the defendant was identified as one of the perpetrators by an accomplice. This identification provided probable cause for his arrest (see, People v Hairston, 117 A.D.2d 618, 620). Furthermore, the defendant's arrest in the homicide case followed his confession to a police detective concerning his involvement in that crime. Thus, that arrest was also based on probable cause. The confession was made while the defendant's robbery arrest was being processed and before the right to counsel had attached or had been invoked.
The defendant's challenge to the voluntariness of his confessions is also meritless. The hearing courts' determinations crediting the testimony of the prosecution's witnesses are supported by the record and should not be disturbed (see, People v Armstead, 98 A.D.2d 726).
Furthermore, the defendant's claim that he was entitled to the representation of counsel at a lineup was properly rejected. The lineup was investigatory, and the right to counsel had not yet attached (see, People v Hawkins, 55 N.Y.2d 474, rearg denied sub nom. People v Laffosse, 56 N.Y.2d 1032, cert denied 459 U.S. 846). Finally, the defendant's claim that the lineup was suggestive because the robbery victim had been told that it would contain a "suspect" is not supported by the record. The victim specifically testified, without contradiction, that no such representation had been made. In any event, a lineup is not rendered impermissibly suggestive if the person viewing it has been told that it contains a suspect (see, People v Collins, 136 A.D.2d 722, lv denied 71 N.Y.2d 894).
With respect to the defendant's challenges to the sufficiency of the plea allocutions, he failed to move to withdraw his pleas in the Supreme Court, Queens County, and, accordingly, has not preserved his claims for appellate review (People v Hoke, 62 N.Y.2d 1022; People v Pellegrino, 60 N.Y.2d 636). In any event, we find that the allocutions established the requisite elements of the crimes, and that the defendant's guilty pleas were knowing and voluntary (see, People v Harris, 61 N.Y.2d 9).
Finally, the concurrent terms of incarceration imposed were exactly the sentences promised when the guilty pleas were entered and were appropriate under the circumstances of these cases (see, People v Kazepis, 101 A.D.2d 816). Mangano, J.P., Bracken, Eiber and Spatt, JJ., concur.