Opinion
January 12, 1987
Appeal from the Supreme Court, Kings County (Shaw, J.).
Ordered that the judgment is affirmed.
A lineup identification of the defendant which was suppressed as a result of a purported right to counsel violation was inadvertently elicited during the trial of the defendant. However, the error was not brought to the court's attention until the charge conference, when counsel merely requested that the improper testimony be stricken. Even if such action by counsel were sufficient to preserve the issue for appellate review, intervening decisional law has established that the defendant's right to counsel was not violated merely because the police failed to suspend the lineup procedure and take positive action to notify the defendant's attorney of the impending prearraignment lineup (see, People v. Hawkins, 55 N.Y.2d 474, 487 ["if a suspect already has counsel, his attorney may not be excluded from the lineup proceedings * * * (t)hat does not mean, however, that the police must notify counsel of an impending investigatory lineup"]).
Thus, any error in the elicitation of suppressed evidence is not of constitutional dimension, and is harmless in light of the convincing, permitted in-court identification by that same witness, as well as the positive identifications of the defendant made by two other witnesses. Thompson, J.P., Niehoff, Kunzeman and Sullivan, JJ., concur.