People v. Carrouthers

Appeal by the defendant from a judgment of the County Court, Orange County (Ritter, J.), rendered February 24, 1983, convicting him of robbery in the first degree, upon a jury verdict, and sentencing him to an indeterminate term of 12 Vi to 25 years’ imprisonment. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was for the suppression of identification testimony. Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant’s sentence to an indeterminate term of IV2 to 15 years’ imprisonment; as so modified, the judgment is affirmed. The defendant’s claim that he was denied his right to counsel at the lineup is without merit. A pending unrelated criminal case upon which an arrest warrant has issued does not bar the police from placing the arrested suspect in a [771] lineup for identification in a separate case, provided there is an independent showing of probable cause to arrest him in the separate case (see, People v Kazmarick, 52 NY2d 322; Matter of Santucci v Andrews, 117 Misc 2d 616). A defendant’s right to counsel has not attached where lineup procedures occur prior to the initiation of formal judicial proceedings against him (see, Kirby v Illinois, 406 US 682; People v Hawkins, 55 NY2d 474, cert denied 459 US 846). However, the sentence was excessive to the extent indicated. We have considered the defendant’s remaining contentions, including those raised in his pro se brief, and find them to be either unpreserved for appellate review or without merit. Mangano, J. P., Niehoff, Spatt and Harwood, JJ., concur.