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Defendant Files Motion to Supress

The defendant in this case was charged with Rape in the first degree. He filed a motion to suppress any line-up or photograph identification. He argued that the result of a line-up conducted by the Suffolk County Police Department violated his rights under the Fourth, and Fourteenth Amendments of the United States Constitution, and his privilege against self-incrimination and his right to counsel as guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution.

A New York Criminal Lawyer said the Prosecution opposed defendant’s motion, stating that ” . . . defendant has failed to make any factual allegations which are required pursuant to § 710.60 subd. (1) of the CPL . . . ” and therefore, “defendant’s motion . . . should be denied as a matter of law pursuant to § 710.60(3)(b) of the CPL.” However, in the alternative, the Prosecution asserted that defendant’s constitutional rights were not violated.

In support of his motion, Defendant presented an affirmation made by his attorney upon information and belief, the source of his information and the grounds for his belief being the defendant. The affirmation states that the lineup conducted by the Suffolk County Police Department ” . . . was conducted without defendant’s consent or waiver of the presence of counsel . . . ” and that defendant was ” . . . physically forced to participate in a line-up without the benefit of his Miranda warnings or presence of counsel known to the members of the Sixth Precinct to be at that time, representing defendant.”

With respect to defendant’s assertion that his being included in a lineup violated his privilege against self-incrimination and that “the result” should be suppressed, the Court held that this privilege does not protect a person from being compelled to appear in a lineup. A New York Sex Crimes Lawyer said it is a well established jurisprudence that “neither the lineup itself nor anything shown by this record that defendant was required to do in the lineup violated his privilege against self-incrimination. The court recently reaffirmed that the privilege ‘protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . . .’

In a landmark case, the Supreme Court of the United States stated that:

“Neither the lineup itself nor anything shown by this record that Wade was required to do in the lineup violated his privilege against self-incrimination. We have only recently reaffirmed that the privilege ‘protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . . .’

With respect to Defendant’s claim that he was placed in a lineup without the benefit of counsel, despite the fact that “the police was aware that he was represented by counsel on a previous arrest and a pending matter in the County Court of Suffolk, the Court held that the right to the presence of counsel at identification viewings is mandated only after the filing of an accusatory instrument or after adversary judicial criminal proceedings have been initiated.

It is a well-settled jurisprudence that an identification made at a lineup conducted prior to the filing of an accusatory instrument and in the absence of counsel should not be suppressed where a defendant has been arrested for a crime committed while awaiting sentence in a previous action despite the fact that the police were aware that he was represented by counsel in that action.

In the present case, the lineup sought to be suppressed arose from a custodial situation which occurred several months after defendant was released from custody on the charge for which he was represented by counsel. A Nassau County Sex Crimes Lawyer said the defendant had for several months been released from custody on the charge for which he had an attorney when the lineup in question was conducted on a completely unrelated matter occurring after his release. Counsel’s representation of defendant on the earlier charge should not be permitted to carry over to the lineup on the new charge. Otherwise, a Queens Sex Crimes Lawyer said any defendant having counsel on pending charges would have counsel for all crimes occurring while the original charges were pending.

Therefore, the Court held that Defendant was not entitled to counsel at the lineup in question, there having been no accusatory instrument filed and the defendant having been arrested for a sex crime occurring after he had been released on the earlier crime for which he had obtained representation.

Stephen Bilkis and Associates with its New York Rape Lawyers can assist you and your loved ones to assert your rights with legal expertise. It has offices within New York Metropolitan area, including Corona, New York.