Opinion
January 29, 1996
Appeal from the County Court, Westchester County (West, J.).
Ordered that the judgment is affirmed.
The defendant sold quantities of cocaine to an undercover officer, Tony Ortiz, on October 7, 1992, and on October 13, 1992. On appeal, he argues, inter alia, that the Supreme Court erred when it summarily denied his motion for a Wade hearing concerning the undercover officer's alleged identification of him from a photograph as to the second sale date, during the undercover officer's January 6, 1993, Grand Jury testimony. The court held that the identification was merely confirmatory. We now affirm, although for reasons different than those stated by the County Court.
In reviewing a decision of the County Court, this Court is limited to the evidence before the County Court ( see, People v Gonzalez, 55 N.Y.2d 720, cert denied 456 U.S. 1010; People v McClary, 197 A.D.2d 640). Here, because the Grand Jury minutes were expressly considered by the County Court in rendering its decision on the defendant's omnibus motion, they are properly before this Court on appeal. However, our scrutiny of those minutes reveals that the sole witness to testify before the Grand Jury, Detective Ortiz, did not identify the defendant within the intendment of CPL 710.30 ( cf., People v Thomas, 60 A.D.2d 993; People v Tanksley, 122 Misc.2d 182; People v Leite, 78 Misc.2d 296; see also, People v Ramos, 52 A.D.2d 640, affd 42 N.Y.2d 834). Rather, Ortiz merely testified that a photograph of the defendant was made part of the police file contemporaneously with his initial identification ( see, People v Brewster, 63 N.Y.2d 419; People v Ball, 89 A.D.2d 353). Indeed, the prosecutor expressly noted that the photograph was neither shown to the Grand Jury nor entered into evidence. Thus, because no identification within the intendment of CPL 710.30 occurred at the Grand Jury proceeding, the court did not err in summarily denying the defendant's motion for a Wade hearing ( see, People v Trammel, 84 N.Y.2d 584; People v Williamson, 79 N.Y.2d 799; People v Tas, 51 N.Y.2d 915; People v Gissendanner, 48 N.Y.2d 543). Moreover, the defendant could have asked the court to reconsider its ruling when he received the Grand Jury minutes in connection with Ortiz' testimony at trial. Finally, the People's mischaracterization of Ortiz' testimony before the Grand Jury as an identification within the intendment of CPL 710.30, when they served their CPL 710.30 notice, is not binding upon this Court ( see, People v Allen, 162 A.D.2d 538).
The court's Sandoval ruling was not an improvident exercise of discretion ( see, People v Pavao, 59 N.Y.2d 282; People v Sandoval, 34 N.Y.2d 371).
We have considered the defendant's remaining contentions and find them to be without merit. Balletta, J.P., Ritter, Copertino and Pizzuto, JJ., concur.