People v. Davis

34 A.D.3d 1349, 823 N.Y.S.2d 712

Opinion

Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), rendered September 9, 2003. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fifth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of criminal sale of a controlled substance in the fifth degree (Penal Law § 220.31). Defendant entered the plea after his jury trial on the charge of criminal possession of a controlled substance in the third degree ended in a mistrial. Contrary to defendant’s contention, County Court (Richard A. Keenan, J.) properly refused to conduct a Wade hearing with respect to the identification of defendant by an undercover officer who observed defendant during the drug transaction at issue. “The identification took place at or near the scene of the drug transaction within minutes thereof and was thus merely confirmatory” (People v Stubbs, 6 AD3d 1109, 1109 [2004], lv denied 3 NY3d 663 [2004]; see People v Thompson, 298 AD2d 869, 870 [2002], lv denied 99 NY2d 565 [2002]). Defendant may not rely upon testimony elicited at trial to challenge the court’s determination (see People v Douglas, 8 AD3d 980, 981 [2004], lv denied 3 NY2d 705 [1957]; People v Pucci, 5 AD3d 1099 [2004], lv denied 3 NY3d 646 [2004]). Present— Scudder, J.P, Kehoe, Martoche and Green, JJ.