Opinion
May 10, 2000.
Appeal from Judgment of Monroe County Court, Connell, J. — Criminal Sale Controlled Substance, 3rd Degree.
Judgment unanimously affirmed.
PRESENT: PINE, J. P., HAYES, KEHOE AND LAWTON, JJ.
Memorandum:
The record supports County Court's conclusion that, although the photo array was unduly suggestive, the State Trooper had an independent basis for her in-court identification of defendant ( see, People v. Nowlin, 236 A.D.2d 886, lv denied 89 N.Y.2d 1014; People v. South, 233 A.D.2d 910, 911, lv denied 89 N.Y.2d 989; People v. Rowan, 199 A.D.2d 546, 547, lv denied 83 N.Y.2d 810). The State Trooper purchased drugs from defendant, viewing him at close range for several minutes under good lighting conditions.
Defendant contends that the court erred in failing to afford him an opportunity to withdraw his plea before imposing an enhanced sentence ( see, People v. Selikoff, 35 N.Y.2d 227, 241, cert denied 419 U.S. 1122; People v. Williams, 195 A.D.2d 1040, 1041; People v. Scrivens, 175 A.D.2d 671, 672). That contention is unpreserved for our review ( see, CPL 470.05; People v. Luksch, 265 A.D.2d 895, lv denied 94 N.Y.2d 825; People v. Hartford, 217 A.D.2d 798, 800), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). The sentence is neither unduly harsh nor severe.