People v. Newball
| Decision Date | 13 February 1990 |
| Citation | 158 A.D.2d 553,551 N.Y.S.2d 324 |
| Parties | The PEOPLE, etc., Respondent, v. Lewis NEWBALL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Ann Cypher and Andrew Abraham, of counsel), for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Barbara D. Underwood, Ann Bordley, and Jay M. Cohen, of counsel; Peter M. Nissman, on the brief), for respondent.
Before MOLLEN, P.J., and EIBER, SULLIVAN and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garry, J.), rendered June 25, 1987, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
The defendant moved prior to trial to suppress identification testimony given by a "back-up" police officer in the so-called "buy and bust" operation which resulted in the instant prosecution. The defendant asserted that this police officer's testimony should be precluded because of the People's alleged noncompliance with CPL 710.30. We find that the trial court properly permitted the testimony. Under the circumstances of this case, this police officer's identification testimony did not fall within the intendment of the statute (see, People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924; see also, People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462).
The defendant's challenge to that portion of the jury charge regarding the issue of identification, on the ground that the court erroneously failed to mention the one-month interval between the incident and the arrest, is unavailing. A review of the court's entire charge shows that the court extensively instructed the jurors regarding the People's burden of proving the defendant's identification beyond a reasonable doubt, while also enumerating several factors, including the eyewitness's credibility, which were to be considered by them during their deliberations (see, People v Whalen, 59 N.Y.2d 273, 279, 464 N.Y.S.2d 454, 451 N.E.2d 212; People v. Mitchell, 143 A.D.2d 421, 422, 532 N.Y.S.2d 428; People v. Zocchi, 133 A.D.2d 478, 519 N.Y.S.2d 690; People v. Daniels, 88 A.D.2d 392, 453 N.Y.S.2d 699).
We find that the defendant's sentence was...
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