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THE DETECTIVE WHO CONDUCTED THE LINEUP WAS AWARE DEFENDANT WAS REPRESENTED BY AN ATTORNEY BUT DID NOT NOTIFY THE ATTORNEY OF THE LINEUP; THE IDENTIFICATION EVIDENCE SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the detective who conducted a line-up identification with the defendant was aware defendant was represented by an attorney, but did not notify the attorney of the line-up. The identification evidence should have been suppressed:

As a general rule, a defendant does not have the right to counsel at a preaccusatory, investigatory lineup … . However, there are two exceptions. The first is when a defendant is actually represented by an attorney in the matter under investigation and the police know, or can be charged with knowledge of, that representation … . The second is when a defendant who is already in custody and represented by an attorney in an unrelated case invokes the right by requesting his or her attorney … . In either case, “[o]nce the right to counsel has been triggered, the police may not proceed with the lineup without at least apprising the defendant’s lawyer of the situation and affording the lawyer a reasonable opportunity to appear. A specific request that the lineup not proceed until counsel is so notified need not be made” … .

Here, prior to the lineup, the attorney representing the defendant on another matter spoke to the arresting officer and identified herself as the defendant’s attorney. The detective who conducted the lineup testified at the suppression hearing that he was aware prior to conducting the lineup that the defendant was represented by an attorney. Moreover, the only reasonable inference from the detective’s testimony was that he was aware that the defendant was represented by the attorney with respect to the robbery case under investigation. People v Marion, 2021 NY Slip Op 02177, Second Dept 4-7-21

 

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