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THE PEOPLE, ETC., respondent, v. AURELLO BARNES, a/k/a ESCALANTE BARNES, appellant.

ORDERED that the judgment and the amended judgment are affirmed.

Contrary to the defendant's contention, the hearing court properly determined that the defendant's lineup procedure was not unduly suggestive. The unrebutted testimony of the Assistant District Attorney established that the lineup procedure was not impermissibly suggestive. Furthermore, the hearing testimony established that the defendant's trial counsel was present at the defendant's court-ordered lineup, and did not object to the lineup's composition or to how it was conducted (see, People v. Eldridge, 213 A.D.2d 667; People v. Green, 143 A.D.2d 768). Considering, as we must, the totality of the circumstances surrounding the defendant's lineup procedure, there was no showing that the defendant's lineup was impermissibly suggestive (see, People v. Green, supra, at 769; cf., People v. Ortiz, 90 N.Y.2d 533, 537).

The defendant's remaining contentions are without merit.

ALTMAN, J.P., S. MILLER, CRANE and PRUDENTI, JJ., concur.

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PEOPLE v. BARNES
(Dec 17, 2001)