Opinion
February 10, 1994
Appeal from the Supreme Court, New York County (Clifford A. Scott, J.).
Defendant's guilt was established beyond a reasonable doubt. Five to six minutes after an undercover officer made a purchase through a hole in an apartment door, the backup team found defendant alone in the apartment, with prerecorded money in his pocket (a fact for which defendant gave an incredible explanation at trial), and with drugs in the process of being flushed down the toilet. Moreover, the undercover officer had seen the seller's fingertips through the hole in the door, and had noted that they were scarred, or cut up, which accurately described the condition of defendant's fingertips. Viewing the evidence most favorably to the People (People v. Kennedy, 47 N.Y.2d 196, 204), the evidence was sufficient to sustain the jury's determination that it was defendant who sold the drugs to the undercover and possessed the drugs in the toilet.
Contrary to defendant's arguments, the evidence that defendant, like the seller, had scarred fingertips, was not identification evidence requiring notice under CPL 710.30 (1) (b), a Wade hearing, or a jury instruction on identification, even though the undercover officer had looked at defendant's postarrest fingerprint card to verify that defendant, in fact, had scarred fingertips. The condition of defendant's fingertips was never offered as a means of identification (cf., People v. Collins, 60 N.Y.2d 214, 218 [voice identification]), but merely as "proof that the defendant and the perpetrator share similar physical characteristics" (People v. Mountain, 66 N.Y.2d 197, 202).
Defendant was properly sentenced as a second felony offender, because he failed to meet his burden of alleging and proving that his prior conviction was unconstitutionally obtained (People v Harris, 61 N.Y.2d 9, 15).
We find the sentence to be unduly harsh, to the extent indicated. The facts relating to sentence are virtually identical to those presented in People v. Morales ( 181 A.D.2d 572, 573-574, lv denied 80 N.Y.2d 835).
Concur — Carro, J.P., Wallach, Asch, Nardelli and Williams, JJ.