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September 19, 1986

ROBERT H. KUHLMANN, Superintendent, Sullivan Correctional Facility, Fallsbury, New York; ROBERT ABRAMS, Attorney General of New York; and DENIS DILLON, District Attorney of Nassau County, Respondents

The opinion of the court was delivered by: PLATT



 Petitioner, Quentin Meadows, was convicted after a jury trial in New York State Supreme Court, Nassau County, of two counts of Robbery in the First Degree. On March 5, 1982, petitioner was sentenced as a second violent felony offender to two indeterminate terms of ten to twenty years imprisonment to be served concurrently with one another and consecutively to any other sentence previously imposed. His conviction was affirmed without an opinion by the Appellate Division, Second Department, on June 4, 1984. The New York Court of Appeals affirmed in an opinion reported at 64 N.Y.2d 956, 488 N.Y.S.2d 643, 477 N.E.2d 1097. The United States Supreme Court denied a petition for certiorari on October 10, 1985. Petitioner is before this Court on an application for a writ of habeas corpus.

 In this application two grounds are raised by the petitioner in seeking the writ:

 (1) A lineup viewing by a key witness was conducted in the absence of counsel several months after counsel had appeared in the matter.

 (2) The petitioner was improperly impeached by the use of an alleged admission taken in violation of his right to counsel.

 I. Factual Background

 During the evening of October 21, 1980, John Taylor was working as an attendant at a BP gas station located in Nassau County. Also working at the station was Paul Cufalo. Taylor's cousin, James Alviti, came to the station by bicycle, for a visit, around 9:15 p.m. Petitioner arrived at the station soon after and displayed the butt of a gun to Taylor and Alviti. He ordered them into a back room where Cufalo was already present and made the three men crouch on the floor. Petitioner took cash from Taylor and Laviti and then left. A short time later Taylor called the police and described the robbery. When the police responded, Taylor, Alviti and Cufalo gave descriptions of the petitioner.

 The next day, Taylor and Alviti went to police headquarters to view slides and photographs in an attempt to identify the robber. They immediately recognized petitioner on one of the sixteen slides and on one picture.

 A week later, on October 29, 1980, Taylor was again at work at the BP station. Vincent Rizzuto was also on duty at the station. At about 9:15 that evening, while servicing a car, Taylor recognized petitioner walking into the station's office. Taylor asked a customer to call for help and followed petitioner into the office. Petitioner addressed Taylor by his first name and, at gunpoint, ordered Taylor and Rizzuto into a back room. Petitioner took cash from Taylor and Rizzuto and left. Taylor called the police. He told them that he had been robbed again by the same person who had robbed him the week before. Detective Byron C. Bartlett arrived at the scene. He showed Taylor and Rizzuto the same photographic array that had been used the week before. Both men identified petitioner's picture.

 A felony complaint was filed and an arrest warrant for petitioner was obtained on November 7, 1980 from Judge Myron Steinberg. On November 20, 1980, detectives of the Nassau County Police Department apprehended petitioner at his home in Hollis, Queens. Petitioner was read his Miranda warnings and taken to the Robbery Squad Room of the Nassau County Police Department. While in custody, that day, petitioner made an oral statement to Detective Thomas P. Howell in which he admitted committing the two gas station robberies.

 An indictment against petitioner was filed on January 26, 1981. At his arraignment on March 25, 1981, petitioner was represented by James Horan, Esq., who filed an appearance as retained counsel. Mr. Horan requested and was given a two-month adjournment to prepare for trial and make motions. During those two months, the trial court unsuccessfully attempted to communicate orally with Mr. Horan on numerous occasions to notify him to attend a conference on petitioner's case. Minutes of Hearing at 456.

 A motion was filed by the State requesting a pretrial lineup. The motion was never answered and Mr. Horan made no appearance with respect to it. Judge Harrington granted the motion and sent Mr. Horan a copy of the order. Minutes of Hearing at 456. On the date of the lineup, May 19, 1981, Detective Byron C. Bartlett telephoned Mr. Horan's office several times but was not able to speak to him directly. Minutes of Hearing at 333-35. The lineup was held in the absence of Mr. Horan and petitioner was identified by Vincent Rizzuto. None of the other victims viewed the May 19th lineup.

 At petitioner's trial Taylor, Rizzuto and Alviti made in-court identifications. Rizzuto also testified about his identification of petitioner at the May 19th lineup. By a prior ruling the prosecution had been barred from using petitioner's admission in its case-in-chief because it was obtained from the petitioner in violation of his right to counsel as set forth in People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344 (1980). However, the prosecutor was permitted to use the statement for impeachment purposes if petitioner took the stand. Petitioner did testify and the ...

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