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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PHILLIP FRIESON, Appellant.

The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record ( see People v Prochilo, 41 NY2d 759, 761).

Defendant was not entitled to counsel at the investigatory lineup involving the robberies, since counsel never entered the matters under investigation and defendant did not request an attorney at the lineup ( see People v Mitchell, 2 NY3d 272, 274-275 ). Although defendant was represented on the imitation pistol charge, that charge did not have the type of relationship to the robbery charges that would trigger defendant's right to counsel at the lineup ( see People v Grant, 91 NY2d 989, 991; People v Cohen, 90 NY2d 632, 638-642; People v Coleman, 43 NY2d 222, 226). The imitation pistol charge arose from a different incident, against a different victim and occurred five days and eight days, respectively, after the two robberies. It is of no significance that, in other proceedings involving a different context, the People argued that the imitation pistol incident was admissible as proof of the robberies under People v Molineux ( 168 NY 264); in any event, in each instance, defendant opposed the People's Molineux theory and the court rejected it.

The two evidentiary rulings challenged by defendant on appeal were proper exercises of discretion.

We perceive no basis for reducing the sentence.

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STATE v. FRIESON
(Jan 25, 2007)