Opinion
June 14, 2001.
Judgment, Supreme Court, Bronx County (Robert Seewald, J.), rendered December 5, 1997, 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 4 1/2 to 9 years, unanimously affirmed.
John M. Moreira, for respondent.
Judith Stern, for defendant-appellant.
Before: Williams, J.P., Mazzarelli, Andrias, Lerner, Saxe, JJ.
Defendant waived his right to a hearing on his motion to suppress the identification testimony of the undercover officer when defendant proceeded to trial without calling to the court's attention the fact that the previously granted hearing had not been held (see, People v. Rodriguez, 50 N.Y.2d 553; People v. DiLenola, 245 A.D.2d 1132, lv denied 91 N.Y.2d 1006; People v. Brimage, 214 A.D.2d 454, lv denied 86 N.Y.2d 732). While defendant claims he was deprived of effective assistance of counsel because his attorney failed to pursue the suppression, it is impossible on the existing record to determine the reason for the abandonment and thus a CPL 440.10 motion would be required. To the extent the existing record permits review, we conclude that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714). There is no reason to believe that the suppression motion had any likelihood of success.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis upon which to disturb the jury's determinations concerning credibility and identification.