People v Houston

People v Houston 2008 NY Slip Op 00061 [47 AD3d 424] January 8, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

The People of the State of New York, Respondent,
v
Ed Houston, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York City (Barbara Zolot of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Eric Rosen of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael R. Ambrecht, J., on motion; William A. Wetzel, J., at plea and sentence), rendered October 23, 2006, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second drug felony offender, to a term of 3½ years, unanimously affirmed.

The court properly denied defendant's motion to suppress identification testimony, without granting a hearing. Defendant did not preserve his argument that the People failed to provide the motion court with enough information upon which to conclude that the viewing of defendant in this observation sale case was a confirmatory identification for which no Wade hearing was required (see People v Wharton, 74 NY2d 921 [1989]), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court had sufficient information upon which to make that determination (see People v Davis, 289 AD2d 134 [2001], lv denied 97 NY2d 753 [2002]). As part of a planned operation, the officer deliberately observed defendant and made a prompt identification that fell within the Wharton exception to the requirement of a Wade hearing (compare People v Boyer, 6 NY3d 427 [2006]). Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and McGuire, JJ.