Opinion
February 24, 1998
Appeal from the Supreme Court, New York County (Bernard Fried, J.).
Defendant's motion to suppress identification testimony was properly denied. Defendant was not deprived of the right to counsel at his lineup where the police, prior to conducting the procedure, made reasonable efforts to contact defendant's counsel, by repeatedly calling the telephone numbers that he had left and leaving messages for him. Moreover, counsel, despite being aware of the impending lineup, never requested that the procedure be postponed to a more convenient time and absented himself from the location at which he had requested to be contacted ( see, People v. McRae, 195 A.D.2d 180, 187, lv denied 83 N.Y.2d 969; People v. Cherry, 161 A.D.2d 185, lv denied 76 N.Y.2d 854).
The trial court properly excluded from evidence a 911 call made by an anonymous bystander who had not personally observed the shooting and whose statement contained, at most, a mere conclusion as to the identity of the assailant. This statement did not qualify as an excited utterance ( see, People v. Edwards, 47 N.Y.2d 493) and lacked any probative value.
We perceive no abuse of sentencing discretion.
Concur — Milonas, J. P., Nardelli, Mazzarelli and Andrias, JJ.