Opinion
5708
December 20, 2001.
Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J. on motion; Gerald Sheindlin, J. at jury trial and sentence), rendered July 1, 1998, convicting defendant of criminal sale of a controlled substance in the third degree (four counts) and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 5 to 10 years, unanimously affirmed.
ARGIRO KOSMETATOS, for respondent.
MATTHEW J. GAUL, for defendant-appellant.
Before: Sullivan, P.J., Nardelli, Mazzarelli, Rubin, Saxe, JJ.
Defendant's motion to suppress identification testimony was properly denied without a hearing. The information presented to the motion court clearly established that the viewing of defendant by the observing officer in this observation sale case was a confirmatory identification for which no Wade hearing was required (see, People v. Wharton, 74 N.Y.2d 921; People v. Rampersant, 272 A.D.2d 202, lv denied 95 N.Y.2d 870).
The record fails to support defendant's contention that the conduct of the trial court deprived him of a fair trial. The court properly exercised its discretion when it advised the prosecutor to ask particular questions, after determining that the prosecutor's inexperience was undermining the orderly presentation of evidence and truth-seeking function of the trial (see, People v. Moulton, 43 N.Y.2d 944; People v. Medina, 284 A.D.2d 122; People v. Soto, 210 A.D.2d 5, lv denied 84 N.Y.2d 1039). Rather than asking the questions itself, the court was careful to avoid any appearance of bias by instead raising the matters in question with counsel outside the hearing of the jury. Defendant's claim that he was prejudiced by the court's facial expressions is unsupported by the record.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.