People v. Delacruz

• Decision Date: 27 December 2004
• Docket Number: 2001-11116.
• Citation: 786 N.Y.S.2d 321,13 A.D.3d 642,2004 NY Slip Op 09657
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK DELACRUZ, Appellant.
• Court: New York Supreme Court — Appellate Division

13 A.D.3d 642

786 N.Y.S.2d 321

2004 NY Slip Op 09657

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK DELACRUZ, Appellant.

2001-11116.

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 27, 2004.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosengarten, J.), rendered December 19, 2001, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Since the defendant failed to demonstrate good cause for the untimely notice of alibi witnesses, the trial court providently exercised its discretion in precluding their testimony (see CPL 250.20 [1]; People v Bhuiyan, 295 AD2d 622 [2002]; People v Bonner, 287 AD2d 728 [2001]; People v Wade, 277 AD2d 475, 476 [2000]).

An alleged deprivation of the constitutional right to counsel at a lineup may be raised on appeal, irrespective of whether such claim has been preserved for appellate review (see People v Kinchen, 60 NY2d 772, 773 [1983]; People v Samuels, 49 NY2d 218, 221 [1980]). However, since the defendant did not raise this issue at the pretrial suppression hearing, the record is insufficient to review it on appeal (see People v Kinchen, supra at 773-774).

H. Miller, J.P., Goldstein, Crane and Skelos, JJ., concur.