People v. Feliciano

197 A.D.2d 494, 604 N.Y.S.2d 716, 1993 N.Y. App. Div. LEXIS 10065

Opinion

—Judgment, Supreme Court, Bronx County (Gerald Sheindlin, J.), rendered March 25, 1992, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him, as a second felony offender, to a term of 6 to 12 years, unanimously modified as a matter of discretion in the interest of justice to reduce the sentence to 4 Vi to 9 years, and otherwise affirmed.

This conviction arises out of a "buy-and-bust” operation, in which the defendant sold a vial of cocaine to an undercover police officer in exchange for a 10 dollar bill in prerecorded "buy money”. After completing that transaction, the undercover transmitted the description and location of defendant to the backup team, which quickly took defendant into custody. Soon thereafter, the undercover passed by in a car and confirmed the identity of defendant. In a search incident to arrest, the police recovered the prerecorded money from defendant.

Defendant’s challenge of the summary denial of his pretrial motion, which sought suppression of physical evidence and identification testimony, or, alternatively, a Dunaway/Mapp hearing, is without merit since he failed to allege facts sufficient to support the relief requested (CPL 710.60 [3] [b]; People v Rodriguez, 172 AD2d 191, lv denied 78 NY2d 926).

Further, Criminal Term correctly denied a hearing as to the prospective identification testimony of the undercover officer, since confirmatory identifications by police are generally not subject to suggestiveness (supra).

We find the sentence excessive to the extent indicated. Concur—Carro, J. P., Rosenberger, Ellerin and Kassal, JJ.