People v. Banks

• Decision Date: 31 January 1980
• Citation: 424 N.Y.S.2d 439,73 A.D.2d 907
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert BANKS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 439

424 N.Y.S.2d 439

73 A.D.2d 907

The PEOPLE of the State of New York, Respondent, v. Robert BANKS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Jan. 31, 1980.

C. Y. Kendrick, New York City, for respondent.

T. H. Busch, New York City, for defendant-appellant.

Before BIRNS, J. P., and FEIN, MARKEWICH, LUPIANO and ROSS, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County, rendered June 9, 1978, convicting defendant upon a jury verdict of robbery in the first degree (three counts) and sentencing him to concurrent terms of 121/2 to 25 years, reversed, on the law, the motion granted to the extent of suppressing the lineup identification testimony of witnesses Ms. Inniss and Ms. Gomez, and a new trial ordered.

Following the arrest of defendant on an unrelated robbery in Manhattan, he appeared in two lineups relative to two Bronx supermarket robberies (one robbery on June 15, 1977 and the other on July 22, 1977) of which he was a suspect. The first lineup was staged on September 1, 1977 (the date of the Manhattan arrest). The second took place on October 4, 1977 pursuant to an order of the Supreme Court, Bronx County, issued October 3, 1977 directing defendant's removal from Manhattan to the Bronx to appear in the lineup. Although defendant had an attorney in the Manhattan case, he was without counsel in the Bronx cases until after the lineup of October 4, 1977 had occurred. Defendant was indicted for the Bronx crimes on October 13, 1977.

We agree with defendant, and the district attorney concedes, that defendant was entitled to counsel at the lineup of October 4, 1977. The right to counsel attaches at the commencement of an adversary judicial criminal proceeding (Kirby v. Illinois, 406 U.S. 682, 688-690, 92 S.Ct. 1877, 1881-1882, 32 L.Ed.2d 411; People v. Blake, 35 N.Y.2d 331, 339-340, 361 N.Y.S.2d 881, 890-891, 320 N.E.2d 625, 631-632; People v. Sugden, 35 N.Y.2d 453, 461, 363 N.Y.S.2d 923, 929, 323 N.E.2d 169, 173). The order for production of defendant in Bronx County to appear in the lineup commenced such a proceeding against him and activated his right to counsel (People v. Lloyd Winston G., 45 N.Y.2d 962, 963-964, 412 N.Y.S.2d 135, 136, 384 N.E.2d 681, 682; People v. Coleman, 43 N.Y.2d 222, 225, 401 N.Y.S.2d 57, 59, 371 N.E.2d 819, 821).

We are unpersuaded that the district attorney's failure to inquire whether defendant waived his right to counsel at that lineup was attributable to defendant's failure to object to the identifications on the ground of denial of counsel. There is sufficient in the record to show defendant at the Wade hearing raised such objection.

Unacceptable, too, is the district attorney's contention that the holding of the lineup of October 4, 1977 without the presence of counsel was harmless error. Concededly, there was some positive evidence against defendant. However, had the testimony of Ms. Inniss (a cashier at the supermarket when the June 15, 1977 robbery occurred) and the testimony of Ms. Gomez (a cashier there when the July 22, 1977 robbery took place) as to their identification of defendant in the lineup of October 4, 1977 been suppressed, as it should have been, the result of the trial may have been different. Mr. Simmons, the security guard who identified defendant at the Wade hearing and trial as having committed the robbery of June 15, 1977, had a record of armed robbery. Two of the witnesses to the July 22, 1977 crime (Ms. Ryan, a cashier at the supermarket and Mr. Deritis, manager) who testified at the trial, could not identify defendant. Ms. Flynn, a bookkeeper at the supermarket when the July 22, 1977 robbery occurred, also a witness at the trial, was unable prior to the trial to identify a photograph of defendant as he appeared in the lineup of October 4, 1977 and furthermore her in-court identification of defendant was perhaps prompted by a suggestive in-court identification procedure. Thus, it cannot be said beyond a reasonable doubt that the error, which was of constitutional dimension, did not contribute to the conviction of defendant (see People v. Almestica, 42 N.Y.2d 222, 397 N.Y.S.2d 709, 366 N.E.2d 799, dissenting opinion, pp. 227-229, 397 N.Y.S.2d pp. 712-713, 366 N.E.2d p. 803; see also, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

In view of our disposition it is not necessary to discuss the other points raised by defendant.

All concur, except LUPIANO, J., who dissents in a memorandum as follows:

This is an appeal from a judgment convicting defendant Robert Banks, after a jury trial, of three counts of robbery in the first degree. Banks, together with Julius Joseph, was indicted for three counts of robbery in the first degree and seven related counts. The indictment stemmed from two separate robberies in Bronx County in which both men allegedly participated: one, on June 15, 1977, at a Shopwell Supermarket on Boston Road; the other, on July 22, 1977, at a Shopwell on Fordham Road. Joseph pleaded guilty before trial to the three counts of first degree robbery. At trial, defendant Banks was found guilty of the same three counts.

Defendant appeared in two lineups: one, on September 1, 1977, which was proper in all respects, and one on October 4, 1977, which was held pursuant to an order directing that defendant appear. It is the latter lineup which is the subject of this appeal. Defendant contends that all testimony regarding his identification at that lineup and his spontaneous, unsolicited inculpatory statement made to the witnesses Simmons and Inniss at that time should have been suppressed at trial because he was not afforded the right to counsel at that lineup. People v. Lloyd Winston G., 45 N.Y.2d 962, 412 N.Y.S.2d 135, 384 N.E.2d 681 (1978) held that an order directing a defendant to appear in a lineup is "sufficiently judicial" in nature, not unlike an arraignment or the issuance of an arrest warrant, so...