Opinion
March 5, 1998
Appeal from the Supreme Court (Sheridan, J.).
The charges against defendant arise out of separate sales of crack-cocaine that he made at his apartment at 27 LaFayette Street in the City of Schenectady, Schenectady County, on March 23, 1995 and April 11, 1995. On each occasion, the sales were made to undercover police officer Samuel Mercado, who was accompanied by confidential informant Samuel Williams. At trial, Mercado and Williams each identified defendant as the person who had sold the drugs to Mercado, the jury convicted defendant of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree with regard to each of the sales, and County Court sentenced defendant as a second felony offender to concurrent prison terms of 7 to 14 years. Defendant now appeals the judgment of conviction and, by permission of a Justice of this Court, the denial of his subsequent motion to vacate the judgment of conviction on the basis of alleged ineffective assistance of counsel and a claimed Rosario violation.
We affirm. Initially, we are not persuaded that County Court erred in denying defendant's motion to preclude Mercado's in-court identification of defendant on the basis of an impermissible pretrial identification procedure. Regardless of the propriety of Mercado's viewing of a single photograph of defendant, the testimony adduced at the Wade hearing provided ample support for County Court's determination that Mercado's observation of defendant during the drug sales provided an independent basis for his in-court identification ( see, People v. Stackhouse, 226 A.D.2d 822, 823, lv denied 88 N.Y.2d 995; People v. Buchanon, 186 A.D.2d 864, 866, lvs denied 81 N.Y.2d 785, 81 N.Y.2d 882).
Further, in view of Mercado's and Williams' eyewitness testimony, we are unpersuaded that the trial evidence was legally insufficient to sustain the verdict or that the verdict was against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495; People v. Stackhouse, supra, at 824). In our view, the alleged inconsistencies and discrepancies identified by defendant, which were explored by defense counsel at trial, went to the weight and not the admissibility of the witnesses' in-court identifications ( see, People v. Buchanon, supra, at 866; People v. Cruz, 167 A.D.2d 306, lv denied 77 N.Y.2d 959).
Also unavailing are the assertions of error concerning County Court's Sandoval ruling and Rosario violations. First, we conclude that there was no violation of County Court's Sandoval order. Originally, County Court restricted the People's inquiry concerning a March 1990 conviction for criminal sale of a controlled substance in the third degree to "the fact that * * * defendant was convicted of a felony in 1990 without elaboration of the nature of the charge or the underlying facts". However, at trial, defendant gave testimony concerning his drug use but denied that he had ever sold cocaine. Defendant, having "testified in a manner that [was] likely, in the absence of a modification, to mislead the jury with respect to the precluded evidence" ( People v. Schwerbel, 224 A.D.2d 830, 831; see, People v. Fardan, 82 N.Y.2d 638, 646; People v. Johnson, 203 A.D.2d 588, 589, lv denied 83 N.Y.2d 1004; People v. Morgan, 171 A.D.2d 698, 699, lvs denied 78 N.Y.2d 971), opened the door for detailed questioning concerning his prior conviction for selling cocaine. Under the circumstances, County Court did not abuse its discretion in modifying the original Sandoval order so as to authorize that inquiry. As for the alleged Rosario violation, we need merely note that the April 19, 1995 police report which is referred to in defendant's brief was prepared by an individual who did not testify at trial and, thus, did not constitute Rosario material ( see, CPL 240.45 [a]).
Defendant's remaining contentions are also lacking in merit. Based upon our review of the record, we conclude that defendant's trial counsel provided meaningful representation ( see, People v. Baldi, 54 N.Y.2d 137, 146). We note in that regard that defendant has failed to make a competent showing that counsel failed to call any witnesses who were likely to have given exculpatory testimony. Finally, in view of defendant's prior criminal history and the fact that County Court was authorized to impose consecutive sentences, we are unpersuaded that the concurrent sentences aggregating 7 to 14 years were by any means harsh or excessive.
Cardona, P. J., Crew III, Yesawich Jr. and Peters, JJ., concur.
Ordered that the judgment and order are affirmed.