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People v. Smith

Appellate Division of the Supreme Court of New York, Fourth Department
Jan 31, 1992
179 A.D.2d 1022 (N.Y. App. Div. 1992)

Opinion

January 31, 1992

Appeal from the Onondaga County Court, Mulroy, J.

Present — Doerr, J.P., Boomer, Green, Pine and Balio, JJ.


Judgment unanimously affirmed. Memorandum: County Court erred by denying defendant's motion to suppress identification testimony without placing its findings of fact and conclusions of law upon the record as required by CPL 710.60 (6). Nevertheless, defendant had a full and fair hearing on his suppression motion and the record permits review of the court's determination (see, People v. Gaspar, 132 A.D.2d 990, 991, appeal dismissed 71 N.Y.2d 887; People v. Gonzalez, 116 A.D.2d 661, 662; People v. Russo, 45 A.D.2d 1040; People v. Denti, 44 A.D.2d 44, 47). The Wade hearing (see, United States v. Wade, 388 U.S. 218) transcript reveals that the witness was shown a photo array consisting of defendant's photograph and those of five other men similar in appearance. The witness immediately identified defendant. There is no evidence that the photographic identification procedure was suggestive, and defendant's motion to suppress was properly denied.

We reject defendant's contention that the verdict was not supported by sufficient evidence, and we further conclude, based upon our review of the record, that the verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490). The testimony of the chemist, who performed the standard tests upon the substance defendant sold to a police informant, was sufficient to support the determination that the substance was cocaine (see, People v. Hushie, 145 A.D.2d 506, 507, lv denied 73 N.Y.2d 922).

Defendant failed to preserve for review his objections to the prosecutor's summation. In any event, we conclude that the prosecutor's comments of which defendant now complains were fair comment upon the evidence. Even if we were to conclude that the prosecutor's remarks were improper, given the overwhelming evidence of defendant's guilt, reversal in the interest of justice is not required (see, People v. Scott, 138 A.D.2d 421, lv denied 72 N.Y.2d 866).

We decline to modify defendant's sentence in the interest of justice. Defendant, who has a lengthy criminal record, was convicted of selling quantities of cocaine to a police informant on five separate occasions. He was sentenced as a predicate felon to an aggregate sentence of 20 years to life, which we do not find to be excessive under those circumstances.

Finally, we conclude that defendant was not denied the effective assistance of counsel.


Summaries of

People v. Smith

Appellate Division of the Supreme Court of New York, Fourth Department
Jan 31, 1992
179 A.D.2d 1022 (N.Y. App. Div. 1992)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANDRE SMITH, Appellant

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jan 31, 1992

Citations

179 A.D.2d 1022 (N.Y. App. Div. 1992)

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