People v. Mullings — 110 A.D.2d 720

Majority

p. 720

The People of the State of New York, Respondent, v Richard Mullings, Appellant.

p. 721

The search of the van which defendant was driving, in which a revolver was discovered, was based upon probable cause incident to lawful arrests (see, United States v Ross, 456 US 798 ; People v Belton, 55 NY2d 49 , 54-55; People v Orlando, 56 NY2d 441 ; People v Kreichman, 37 NY2d 693 ).

Defendant’s contention that he was deprived of counsel when tests were taken to determine if he had recently fired a weapon is without merit. The record is barren as to any evidence that defendant had requested same, or that the test was performed after the attorney arrived. Further, the right to counsel does not attach when obtaining physical evidence during a preaccusatory stage of a criminal investigation (see, Gilbert v California, 388 US 263 , 267; People v Goldberg, 19 NY2d 460 , cert denied 390 US 909 ; cf. People v Hawkins, 55 NY2d 474 ).

Lastly, there is no merit to defendant’s assertion that he was deprived of the effective assistance of counsel at trial (see, Strickland v Washington, 466 US 668 , 104 S Ct 2052 ; People v Baldi, 54 NY2d 137 ; People v Morris, 100 AD2d 630 , affd 64 NY2d 803 ). Mangano, J. P., Brown, Niehoff and Lawrence, JJ., concur.

Cases cited

United States v. Ross 456 US 798 SCOTUS 1982-06-01 p. 721
People v. Belton 55 NY2d 49 N.Y. 1982-02-11 at 54-55 p. 721
People v. Orlando 56 NY2d 441 N.Y. 1982-07-01 p. 721
People v. Kreichman 37 NY2d 693 N.Y. 1975-10-28 p. 721
Gilbert v. California 388 US 263 SCOTUS 1967-06-12 at 267 p. 721
People v. Goldberg 19 NY2d 460 N.Y. 1967-05-16 p. 721
People v. Hawkins 55 NY2d 474 N.Y. 1982-04-07 p. 721
Strickland v. Washington 466 US 668 SCOTUS 1984-05-14 p. 721
People v. Baldi 54 NY2d 137 N.Y. 1981-10-29 p. 721
People v. Morris 64 NY2d 803 N.Y. 1985-02-05 p. 721