Opinion
KA 01-01965.
November 21, 2003.
Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered September 11, 2001, convicting defendant after a jury trial of criminal sale of a controlled substance in the third degree.
Edward J. Nowak, Public Defender, Rochester (James Eckert of Counsel), for Defendant-Appellant.
Howard R. Relin, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Plaintiff-Respondent.
Before: Present: Pine, J.P., Wisner, Hurlbutt, Gorski, and Lawton, 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 entered upon a jury verdict convicting him of criminal sale of a controlled substance in the third degree (Penal Law § 220.39). Contrary to the contention of defendant, his motion to suppress identification testimony was properly denied without a hearing. "The information presented to the motion court clearly established that the viewing of defendant by the observing officer in this observation sale case was a confirmatory identification for which no Wade hearing was required" ( People v Davis, 289 A.D.2d 134, 135, lv denied 97 N.Y.2d 753). The sentence is not unduly harsh or severe.