People v. Polk
| Decision Date | 22 May 2001 |
| Citation | 284 AD2d 416,728 N.Y.S.2d 171 |
| Parties | (A.D. 2 Dept. 2001) THE PEOPLE, ETC., RESPONDENT, v. MICHAEL POLK, APPELLANT. (IND. NO. 98-00594) 1999-03726 : SECOND JUDICIAL DEPARTMENT Submitted- |
| Court | New York Supreme Court — Appellate Division |
Gary E. Eisenberg, Monroe, N.Y., for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.
David S. Ritter, J.P., Sondra Miller, Sandra J. Feuerstein, and Robert W. Schmidt, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Orange County (Pano Z. Patsalos, J.), rendered April 8, 1999, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without 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's claim that his conviction is not supported by legally sufficient evidence is not preserved for appellate review because it was not advanced with specificity on his motion for a trial order of dismissal (see, CPL 470.05[2]; People v Gray, 86 N.Y.2d 10; People v Lambert, 272 A.D.2d 413). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's identity as the perpetrator 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[5]).
The defendant's contention that the court erred in its Sandoval ruling (see, People v Sandoval, 34 N.Y.2d 371) is unpreserved for appellate review since the defendant failed to object to the ruling which merely allowed the prosecutor to ask, had the defendant chosen to testify, if he had ever been convicted of either a felony or misdemeanor on a stated date (see, People v Townley, 245 A.D.2d 322; People v Dudley, 143 A.D.2d 764, 765). In any event, the Supreme Court providently exercised its discretion in so ruling (see, People v Gray, 84 N.Y.2d 709, 712-713; People v Pavao, 59 N.Y.2d 282, 292; People v Sandoval, supra).
The defendant's contention that his pretrial motion for a Wade hearing (see, United States v Wade, 388 U.S. 218) was summarily denied is without merit. The identification of the defendant by an undercover officer through a single photograph approximately 15 minutes after the second drug transaction at issue took place was confirmatory in nature, thus obviating the need for a Wade hearing in the first instance (see, People v Rodriguez, 79 N.Y.2d 445; People v Wharton, 74 N.Y.2d 921; People v Waring, 183 A.D.2d 271). The defendant's attempt to use trial testimony to...
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