People v. LaClere

Judgment of the Supreme Court, Bronx County (Frank Diaz, J., at hearing, trial and sentence), rendered August 17, 1987, convicting defendant of attempted murder in the second degree, and sentencing him to a term of imprisonment of 5 to 15 years, is affirmed.

"There is no Federal or State constitutional right to counsel for an accused at a preindictment lineup” (People v Hernandez, 70 NY2d 833, 835; People v Hawkins, 55 NY2d 474, cert denied 459 US 846). While it is true that if a defendant has actually engaged counsel prior to the lineup that attorney may not be deliberately excluded, no such exclusion occurred here. We read People v Coates (74 NY2d 244) and the extract quoted by the dissent (supra, at 249) to hold that in order to trigger the right to the presence of defense counsel at the lineup, it must appear that "the defendant explicitly requests the assistance of his attorney”. Nothing of that kind appears in the record here. Furthermore there is no showing that the arresting officers, acting at the direction and in the absence of the investigating detective, had any knowledge that a lineup was imminent. Under these circumstances the right to counsel did not attach, and there is no basis for suppression of the identification which occurred thereat.

Similarly unavailing are defendant’s arguments that the prosecutor elicited irrelevant evidence linking the appellant to illegal drug sales, and that during summation, the Trial Assistant that the a threat to the life *474of a key prosecution witness. The statement, made during redirect examination of the complainant, which allegedly implied a link between this defendant and the drug-dealing activities of the victim’s roommate, was tenuous at best. Moreover, any indication that a link existed was cured by the court’s immediate striking of the short statement and its instruction to the jurors that they should disregard any comment made upon the matter. As to objections now raised to the prosecutor’s statements in closing argument, they were unpreserved for review as a matter of law (CPL 470.05), as well as lacking in merit.

Lastly, the introduction of the photographs of the crime scene depicting the presence of blood on the sidewalk did not constitute reversible error. The photographs can hardly be considered inflammatory, but even if their receipt in evidence could be viewed as error, it must be deemed harmless in view of the overwhelming evidence against defendant. (People v Cartledge, 147 AD2d 917 [4th Dept 1989].)

We have reviewed the remainder of the defendant’s arguments both as submitted by counsel and in his pro se brief and find them to be without merit. Concur—Sullivan, J. P., Carro, Wallach and Rubin, JJ.