People v. McKinney

Appellate Division of the Supreme Court of New York

People v. McKinney

294 A.D.2d 600, 742 N.Y.S.2d 888, 2002 N.Y. App. Div. LEXIS 5656

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 28, 2002

StatusPublished

This text of 294 A.D.2d 600 (People v. McKinney) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McKinney, 294 A.D.2d 600, 742 N.Y.S.2d 888, 2002 N.Y. App. Div. LEXIS 5656 (N.Y. Ct. App. 2002).

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Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered January 16, 2001, convicting him of criminal sale of a controlled substance in the third degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

The hearing court properly declined to suppress the showup identification of the defendant by the undercover police officer. Although four days elapsed between the drug sale and the arrest, the showup occurred minutes after the undercover officer spontaneously identified the defendant as he was standing on [601]*601a corner in the area where the sale had taken place. The showup was confirmatory in nature and did not taint the officer’s in court identification of the defendant (see People v Hewitt, 267 AD2d 326; People v King, 221 AD2d 370).

The defendant’s contention that the evidence was legally insufficient to establish his identity as the person who sold the drugs to the undercover officer is unpreserved for appellate review (see People v Williams, 247 AD2d 416). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. 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 GPL 470.15 [5]). Altman, J.P., S. Miller, McGinity and Schmidt, JJ., concur.

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—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered January 16, 2001, convicting him of criminal sale of a controlled substance in the third degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

The hearing court properly declined to suppress the showup identification of the defendant by the undercover police officer. Although four days elapsed between the drug sale and the arrest, the showup occurred minutes after the undercover officer spontaneously identified the defendant as he was standing on [601]*601a corner in the area where the sale had taken place. The showup was confirmatory in nature and did not taint the officer’s in court identification of the defendant (see People v Hewitt, 267 AD2d 326; People v King, 221 AD2d 370).

The defendant’s contention that the evidence was legally insufficient to establish his identity as the person who sold the drugs to the undercover officer is unpreserved for appellate review (see People v Williams, 247 AD2d 416). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. 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 GPL 470.15 [5]). Altman, J.P., S. Miller, McGinity and Schmidt, JJ., concur.

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Bluebook (online)

294 A.D.2d 600, 742 N.Y.S.2d 888, 2002 N.Y. App. Div. LEXIS 5656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mckinney-nyappdiv-2002.

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