People v. Henderson

217 A.D.2d 421, 629 N.Y.S.2d 239, 1995 N.Y. App. Div. LEXIS 7630

Opinion

Judgment, Supreme Court, Bronx County (Richard Price, J.), rendered August 25, 1993, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 41/2 to 9 years, unanimously affirmed.

Defendant’s motion to suppress anticipated testimony of confirmatory identification by an undercover police officer involved in a buy and bust operation (see, People v Wharton, 74 NY2d 921) as the fruit of an unlawful arrest was properly denied without a hearing. Defendant’s conclusory allegation that his behavior just prior to the arrest was "legal and otherwise innocuous” was not tantamount to a denial of drug dealing and did not otherwise supply the court with any useful information about defendant’s conduct (see, People v Mendoza, 82 NY2d 415, 430-431). Nor in the circumstances, do we find confirmatory identification to be unduly suggestive. Suppression hearings, or at least those in which the lawfulness of an arrest would be in issue, are " 'not available merely for the asking’ ” (supra, at 425). Concur—Wallach, J. P., Kupferman, Nardelli and Williams, JJ.