Opinion
2000-00521
Submitted March 5, 2002.
March 25, 2002.
Appeal by the defendant from a judgment of the County Court, Westchester County (West, J.), rendered December 15, 1999, convicting him of criminal sale of a controlled substance in or near school grounds (three counts), criminal sale of a controlled substance in the third degree (three counts), and criminal possession 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, without a hearing (Smith, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Michael G. Paul, New York, N.Y., for appellant.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Lois Cullen Valerio and Richard Longworth Hecht of counsel), for respondent.
Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, and DANIEL F. LUCIANO, JJ.
ORDERED that the judgment is affirmed.
Under the circumstances, it was a provident exercise of discretion to deny that branch of the defendant's omnibus motion which was to suppress the identification testimony of an undercover officer without conducting a Wade hearing (see United States v. Wade, 388 U.S. 218; People v. Polk, 284 A.D.2d 416; People v. Monk, 244 A.D.2d 509). We note that "[t]he defendant's attempt to use trial testimony to challenge the pretrial suppression ruling is impermissible" (People v. Polk, supra, at 417).
The trial court properly declined to incorporate certain language into the jury charge on identification (see 1 CJI[NY] 10.01). The charge as given was balanced (see People v. Rodriguez, 197 A.D.2d 355). In addition, it sufficiently set forth both the factors to be considered in assessing the veracity of the undercover officer's identification testimony and the fact that identity must be proven beyond a reasonable doubt (see People v. Dyer, 245 A.D.2d 299; People v. Maxwell, 184 A.D.2d 661).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's identity as the seller of drugs to the undercover officer on three separate occasions beyond a reasonable doubt (see People v. Hatcher, 209 A.D.2d 639). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15).
The defendant was not deprived of his right to the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708; People v. Baldi, 54 N.Y.2d 137).
RITTER, J.P., GOLDSTEIN, FRIEDMANN and LUCIANO, JJ., concur.