Opinion
KA 02-00397.
Decided April 30, 2004.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered January 9, 2002. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
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 following a jury trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and criminal possession of a controlled substance in the third degree (§ 220.16 [1]). County Court properly denied defendant's motion for a Wade hearing with respect to the identification of defendant by two undercover officers involved in the purchase of drugs from defendant. The identification took place at or near the scene of the drug transaction within minutes thereof and was thus merely confirmatory ( see People v. Wharton, 74 N.Y.2d 921, 922-923; People v. Thompson, 298 A.D.2d 869, 870, lv denied 99 N.Y.2d 565) . The court also properly concluded that there was no need for a Rodriguez hearing ( see People v. Rodriguez, 79 N.Y.2d 445, 452-453). "Such a hearing is not required in a classic `buy and bust' undercover operation where the undercover officer identifies the defendant immediately after the transaction" ( People v. Cuthrell, 284 A.D.2d 982, 983). Finally, the sentence is not unduly harsh or severe.