Opinion
March 29, 1999
Appeal from the judgment of the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment, the amended judgment, and the order are affirmed.
Generally, a defendant has no right to counsel at a lineup which occurs prior to the initiation of formal prosecutorial proceedings ( see, Kirby v. Illinois, 406 U.S. 682, 688-689; People v. Hawkins, 55 N.Y.2d 474, 482, cert denied 459 U.S. 846). Nevertheless, "`if a suspect already has counsel, his attorney may not be excluded from the lineup proceedings'" ( People v. LaClere, 76 N.Y.2d 670, 674, quoting People v. Hawkins, supra, at 487; see also, People v. Wilson, 89 N.Y.2d 754). Here the record indicates that the police notified defense counsel of the impending lineup and that counsel declined to attend. Under these circumstances, the defendant was not denied his right to counsel ( see, People v. Pena, 242 A.D.2d 546, 547; People v. Shepherd, 176 A.D.2d 369).
The defendant's contention that the People failed to prove his identity as the perpetrator is unpreserved for appellate review ( see CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245, 250). In any event, viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Resolution of issues of credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses ( see, People v. Gaimari, 176 N.Y. 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record ( see, People v. Garafolo, 44 A.D.2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15).
The defendant's sentences were not excessive ( see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
S. Miller, J. P., Santucci, Friedmann and Florio, JJ., concur.