People v. Jones , 713 N.Y.S.2d 329 ( 2000 )

—Judgment, Supreme Court, New York County (Charles Solomon, J.), rendered November 5, 1997, convicting defendant, after a jury trial, of murder in the second degree and robbery in the first and second degrees, and sentencing him, as a second violent felony offender, to concurrent terms of 22 years to life, 25 years and 15 years, respectively, unanimously affirmed.

Defendant’s motion to suppress identification testimony was properly denied. There was no violation of defendant’s limited right to counsel at a lineup that occurred prior to the initiation of formal prosecutorial proceedings. The lineup was neither court-ordered nor preceded by an accusatory instrument, and the court’s appointment of counsel for defendant, standing alone, did not constitute significant judicial activity causing the attachment of the indelible right to counsel (see, People v Smith, 62 NY2d 306). Since the assigned attorney was given adequate notice of the investigatory lineup and a reasonable opportunity to attend, but declined to do so, the prosecution was entitled to conduct the lineup in counsel’s absence (see, People v Hildago, 240 AD2d 170, lv denied 90 NY2d 1012; People v Jones, 223 AD2d 375, lv denied 88 NY2d 849).

We perceive no abuse of sentencing discretion. Concur— Nardelli, J. P., Mazzarelli, Lerner, Andrias and Buckley, JJ.