People v. Bennett

Jul 25, 2006
Versions:31 A.D.3d 780
818 N.Y.S.2d 479

Appeals by the defendant from two judgments of the County Court, Westchester County (Adler, J.), both rendered December 17, 2001, convicting him of criminal sale of a controlled substance in the third degree (four counts) and criminal possession of a controlled substance in the third degree (four counts), upon a jury verdict, under indictment No. 01-00059, and attempted criminal possession of a controlled substance in the third degree, upon his plea of guilty, under superior court information No. 01-01557, and imposing sentences. The appeal from the judgment rendered under indictment No. 01-00059 brings up for review the denial, after a hearing, of that branch of the defendant‘s omnibus motion which was to suppress identification evidence.

Ordered that the judgments are affirmed.

The record of the pretrial Wade hearing (see United States v Wade, 388 US 218 [1967]) supports the hearing court‘s determination that the undercover officer‘s identification of the defendant from a single photograph was merely confirmatory (see People v Wharton, 74 NY2d 921, 923 [1989]; People v Smith, 293 AD2d 764, 765 [2002]; People v Polk, 284 AD2d 416, 417 [2001]; People v Almonte, 181 AD2d 736 [1992]).

The defendant received the effective assistance of counsel (see People v Baldi, 54 NY2d 137 [1981]). The defendant failed to demonstrate the absence of strategic or other legitimate explanations for her counsel‘s alleged failures in representation (see People v Martinez, 17 AD3d 484, 484-485 [2005]).

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 [5]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant‘s remaining contentions are without merit.

Florio, J.P., Krausman, Mastro and Dillon, JJ., concur.