Opinion
May 2, 1988
Appeal from the County Court, Suffolk County (Seidell, J.).
Ordered that the judgment is affirmed.
We find no merit in the defendant's claim that he was deprived of his right to counsel at the lineup at which he was identified. It is well settled in this State that a suspect does not have a right to counsel at an investigatory lineup (see, People v Hawkins, 55 N.Y.2d 474, cert denied 459 U.S. 846; People v Petillo, 137 A.D.2d 843), and the right to the assistance of counsel at corporeal identifications arises only after the initiation of formal prosecutorial proceedings (see, Kirby v Illinois, 406 U.S. 682). In addition, the record supports the hearing court's conclusion that the pretrial lineup procedure was not unduly suggestive (see, People v Rodriguez, 64 N.Y.2d 738). There is no requirement that a defendant in a lineup must be surrounded by individuals nearly identical in appearance (see, United States v Reid, 517 F.2d 953; People v Mattocks, 133 A.D.2d 89, lv denied 70 N.Y.2d 801; People v Rodriguez, 124 A.D.2d 611), and, in the instant case, an examination of the lineup photographs reveals no discernable difference in the physical appearances of the participants of such a nature as to create a substantial likelihood that the defendant would be singled out for identification (see, Neil v Biggers, 409 U.S. 188).
We further reject the defendant's claim that the hearing court improperly admitted into evidence statements made by him to one of the police detectives during a telephone call made by the defendant from the Suffolk County Jail. It is well settled that volunteered statements are admissible provided the defendant speaks with genuine spontaneity and not as a result of "`inducement, provocation, encouragement or acquiescence'" (see, People v Sobolof, 109 A.D.2d 903, 904-905). In this case, the evidence adduced at the hearing clearly established that in fact a collect telephone call was made from the Suffolk County Jail to the detective's precinct telephone and the defendant not only initiated making comments about the case but additionally, he ignored the detective's repeated attempts to discourage him from discussing the case.
We decline to disturb the sentence imposed upon the defendant as it was within the bound of the applicable sentencing statute and not excessive under the circumstances of this case (see, People v Suitte, 90 A.D.2d 80).
We have considered the defendant's remaining contentions and find them to be without merit. Brown, J.P., Weinstein, Kooper and Spatt, JJ., concur.