Opinion
Argued January 21, 2000
February 28, 2000
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vaughan, J.), rendered March 24, 1997, convicting him of criminal sale of a controlled substance in the third degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
M. Sue Wycoff, New York, N.Y. (Bonnie C. Brennan of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Monique Ferrell, and Marie-Claude P. Wrenn of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., DANIEL W. JOY, ANITA R. FLORIO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the police had reasonable suspicion to detain him for a prompt confirmatory identification based on the totality of the circumstances, including a general description of the perpetrator and the brief time between the occurrence of crime and the police detention of the defendant a short distance from the site of the crime (see, People v. Farr, 262 A.D.2d 580 [2d Dept., June 21, 1999]; People v. Moore, 261 A.D.2d 640 , citing People v. Martinez, 80 N.Y.2d 444 ; People v. Sharpe, 259 A.D.2d 639 ). Thereafter, when the defendant was identified as the seller of the narcotics, the police had probable cause to arrest him (see, People v. Farr, supra, citing People v. Martinez, supra). Since there was probable cause to arrest the defendant, the search incident to the arrest was proper, and the physical evidence recovered was admissible at trial (see, People v. Brenfield, 188 A.D.2d 477, 478-479 ; People v. Brown, 173 A.D.2d 629 ).
The defendant's claim that the trial court erred in failing to deliver an adverse inference charge based upon the People's failure to preserve a photograph taken of him after his arrest is not preserved for appellate review (see, CPL 470.05[2];People v. Morrison, 235 A.D.2d 501 ; People v. Durio, 175 A.D.2d 842, 843 ; People v. Hentley, 155 A.D.2d 392, 394 ). In any event, under the circumstances of this case, the People's failure to preserve that evidence does not require reversal (see, People v. Jones, 249 A.D.2d 490 , citing People v. Wallace, 76 N.Y.2d 953 ).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80 ).
The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05[2]) or without merit.