Opinion
KA 02-00732
October 2, 2003.
Appeal from a judgment of Supreme Court, Monroe County (Fisher, J.), entered March 14, 2002, convicting defendant after a jury trial of criminal sale of a controlled substance in the third degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (DANIEL P. MAJCHRZAK, JR., OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., HURLBUTT, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict of criminal sale of a controlled substance in the third degree (Penal Law 220.39). Supreme Court did not err in denying defendant's motion for a Wade and Rodriguez ( see People Rodriguez, 79 N.Y.2d 445) hearing. Where, as here, defendant is identified "by a trained undercover officer who observed defendant during the face-to-face drug transaction knowing defendant would shortly be arrested," no such hearing is required ( People v. Wharton, 74 N.Y.2d 921, 922; see People v. Cuthrell, 284 A.D.2d 982, 983). Contrary to defendant's further contention, the court did not err in failing to specify in its jury charge that any defects in the chain of custody of the narcotics went to the weight of that evidence. Finally, the sentence is not unduly harsh or severe.