People v. Hardy

Hancock, Jr., and Doerr, JJ.

(dissenting). We see nothing "obscure” in the defendant’s statement, made while en route to the Ohio airport in reply to Officer Johnston’s questions about the Keeling robbery, that "he didn’t care to talk about it; that anything we wanted to know about the property we could obtain from his lawyer.” Nor is there anything ambiguous in defendant’s conduct in attempting to telephone his attorney prior to the lineup, or in his communication to Officer Noble after his unsuccessful effort to reach his lawyer that "he tried to [contact his lawyer] and his lawyer wouldn’t be available for a few days” or in his reply when advised that he could get other counsel that "he didn’t want to.” The import, we think, was unmistakable: the defendant had a specific lawyer and he desired representation by that lawyer and no one else during the lineup. The rule of People v Blake (35 NY2d 331) therefore applies: "When an accused, at any stage, before or after arraignment, to the knowledge of the law enforcement agencies, already has counsel, his right or access to counsel may not be denied.” (People v Blake, supra, p 338; see People v Burwell, 26 NY2d 331; People v Gursey, 22 NY2d 224; People v Arthur, 22 NY2d 325; People v Friedlander, 16 NY2d 248.) That defendant did not divulge the name of his attorney is of no consequence. (See People v Blake, supra; People v Gursey, supra.) No reason has been offered for not postponing the lineup for a few days in order to accord defendant’s fundamental right to counsel "the highest degree of respect” which it should command (People v Rogers, 48 NY2d 167, 170). Under the circumstances, the court should have granted the motion to suppress the testimony pertaining to the lineup identification. (Appeal from judgment of Monroe Supreme Court—robbery, first degree.) Present—Simons, J. P., Hancock, Jr., Schnepp, Doerr and Witmer, JJ.