Opinion
December 19, 1994
Appeal from the County Court, Suffolk County (Vaughn, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by deleting the provision thereof which provides that the defendant's sentences for criminal sale of a controlled substance in the third degree are to run consecutively to each other and substituting therefor a provision providing that the sentences are to run concurrently with each other; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, we find that the hearing court did not err in denying suppression of the in-court identifications of the defendant by four of the undercover police officers who had acted as purchasers during the three sales in question. At the Wade hearing, the officers testified that each had observed the defendant for a few minutes at close range, and under very good lighting conditions. The record, therefore, supports the hearing court's determination that an independent source existed to support the officers' in-court identifications of the defendant (see, United States v Wade, 388 U.S. 218; see, e.g., People v Rowan, 199 A.D.2d 546, 547; People v Di Girolamo, 197 A.D.2d 531, 532-533; People v Brown, 191 A.D.2d 502; People v Ericsen, 186 A.D.2d 219; People v Benbow, 180 A.D.2d 805).
The defendant's contention that he was deprived of a fair trial on the ground that the prosecutor exercised peremptory challenges in a racially discriminatory manner is unpreserved for appellate review (see, People v Cruz, 200 A.D.2d 581). In any event, even assuming that the defendant presented a prima facie case of discriminatory jury selection, the record supports the trial court's conclusion that the prosecutor articulated racially neutral reasons for excusing the two black prospective jurors in question (see, Batson v Kentucky, 476 U.S. 79; People v Kern, 75 N.Y.2d 638, cert denied 498 U.S. 824; People v Hernandez, 75 N.Y.2d 350, affd 500 U.S. 352; People v Okehoffurum, 201 A.D.2d 508, 509).
The defendant's contention that the evidence was legally insufficient to establish his guilt is also unpreserved for appellate review (see, CPL 470.05; People v Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, 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, CPL 470.15).
Contrary to the defendant's contention, there is no evidence in the record which indicates that the defendant was punished for exercising his right to a jury trial (see, People v Canute, 190 A.D.2d 745; People v Sherrod, 181 A.D.2d 700; People v Brown, 157 A.D.2d 790, 792). Moreover, the sentencing court properly exercised its discretion in sentencing the defendant as a persistent felony offender (see, Penal Law § 70.10; CPL 400.20 [b]). We find, however, that under all of the relevant circumstances, including the fact that the sentence imposed exceeded that recommended by the prosecutor, the sentence was excessive to the extent indicated (see, e.g., People v Portilla, 190 A.D.2d 827).
The defendant's remaining contentions, including those raised in his pro se supplemental brief, are either unpreserved for appellate review or without merit. Mangano, P.J., Thompson, Copertino and Hart, JJ., concur.