Opinion
12-09-2015
The PEOPLE, etc., respondent, v. Jorge Enrique Nieto PALOMINO, appellant.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, Laura T. Ross, and Jonathan Brewer of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Kendra L. Hutchinson of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, Laura T. Ross, and Jonathan Brewer of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.), rendered May 3, 2010, convicting him of criminal sale of a controlled substance in the first degree (three counts), criminal sale of a controlled substance in the second degree, criminal sale of a controlled substance in or near school grounds (four counts), and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Demakos, J.H.O.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence of identification was legally insufficient to support his convictions is unpreserved for appellate review (see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's identity as the seller of drugs to the undercover officer on four separate occasions beyond a reasonable doubt (see People v. Wright, 292 A.D.2d 638, 639, 739 N.Y.S.2d 605; People v. Polk, 284 A.D.2d 416, 416, 728 N.Y.S.2d 171). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).
The record of the pretrial Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) supports the hearing court's determination that the showup identification by an experienced undercover officer, who had familiarized himself with the defendant's appearance over the course of the investigation, was merely confirmatory (see People v. Wharton, 74 N.Y.2d 921, 922–923, 550 N.Y.S.2d 260, 549 N.E.2d 462; People v. James, 48 A.D.3d 698, 852 N.Y.S.2d 332; People v. De La Cruz, 44 A.D.3d 346, 347, 843 N.Y.S.2d 45; People v. Bennett, 31 A.D.3d 780, 780, 818 N.Y.S.2d 479; People v. Quinones, 292 A.D.2d 239, 738 N.Y.S.2d 574; People v. Pipersburg, 273 A.D.2d 77, 709 N.Y.S.2d 175).
MASTRO, J.P., LEVENTHAL, ROMAN and BARROS, JJ., concur.