People v. Cummings , 732 N.Y.S.2d 362 ( 2001 )

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered June 8, 2000, convicting him of burglary in the first degree and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

The defendant contends that he was deprived of his right to counsel at a lineup. However, the record establishes that defense counsel was made aware that the lineup was about to begin, which belies the claim that she, in effect, was excluded from being present at the lineup. Under these circumstances, the hearing court properly determined that the defendant was not deprived of his right to counsel and properly refused to suppress the identification testimony (see, People v Pena, 242 AD2d 546). O’Brien, J. P., Friedmann, Schmidt and Townes, JJ., concur.