Opinion
December 8, 1997
Appeal from the County Court, Westchester County (LaCava, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction for robbery in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Robbery in the third degree is a lesser-included offense of robbery in the first degree ( see, Penal Law § 160.05, 160.15 Penal). Therefore, the conviction of robbery in the third degree is reversed and that count of the indictment is dismissed (see, CPL 300.40 [b]; People v. Gethers, 212 A.D.2d 544; People v. Florentino, 196 A.D.2d 881, 882).
The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress the lineup identification testimony. The hearing testimony established that, prior to the lineups for the instant charges, the defendant's arraignment in New York County on unrelated charges was delayed to facilitate lineups in an ongoing investigation of 18 cases (see, People v. Zanders, 241 A.D.2d 531; People v. Lopez, 185 A.D.2d 285, 286; People v. Quartieri, 171 A.D.2d 889, 890-891; People v. Barker, 168 A.D.2d 211; People v. Horn, 161 A.D.2d 603; see also, Kirby v. Illinois, 406 U.S. 682, 689; Holmes v. Scully, 706 F. Supp. 195; People v. Hernandez, 70 N.Y.2d 833; People v. Hawkins, 55 N.Y.2d 474, 485, cert denied 459 U.S. 846).
Statements obtained in violation of a defendant's right to counsel, although not admissible as evidence-in-chief, may be used for impeachment purposes should the defendant choose to testify (see, Harris v. New York, 401 U.S. 222, 224; People v. Maerling, 64 N.Y.2d 134; People v. Ricco, 56 N.Y.2d 320, 323, 325-326; People v. Washington, 51 N.Y.2d 214, 219-220; People v. Moshier, 181 A.D.2d 800, 801; People v. Masullo, 158 A.D.2d 548, 549; People v. Chrzanowski, 147 A.D.2d 652, 653; People v. Cartagena, 128 A.D.2d 797, 798; People v. Wendel, 123 A.D.2d 410). At bar, the defendant's second inculpatory statement was properly admitted as a prior inconsistent statement and was properly the subject of rebuttal testimony (see, Harris v. New York, supra; People v. Maerling, supra; People v. Moshier, supra).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
Miller, J. P., Pizzuto, Goldstein and Florio, JJ., concur.