People v. Quinitchett

• Decision Date: 19 December 1994
• Citation: 210 A.D.2d 438,620 N.Y.S.2d 430
• Parties: The PEOPLE, etc., Respondent, v. Andrew QUINITCHETT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 430

620 N.Y.S.2d 430

210 A.D.2d 438

The PEOPLE, etc., Respondent, v. Andrew QUINITCHETT, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 19, 1994.

Andrew T. Harrison, Ronkonkoma, for appellant.

Appellant pro se.

James M. Catterson, Jr., Dist. Atty., Riverhead (Barbara D. Rose, of counsel), for respondent.

Before MANGANO, P.J., and THOMPSON, COPERTINO and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered May 30, 1991, convicting him of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and sentencing him to three indeterminate terms of 25 years to life imprisonment for criminal sale of a controlled substance in the third degree (three counts), all to run consecutively, and two indeterminate terms of 25 years to life imprisonment for criminal possession of a controlled substance in the third degree (two counts), both to run concurrently with each other and with the terms imposed for his convictions of criminal sale of a controlled substance in the third degree. 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 evidence.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by deleting the provision thereof which provides that the defendant's sentences for criminal sale of a controlled substance in the third degree are to run consecutively to each other and substituting therefor a provision providing that the sentences are to run concurrently with each other; as so modified, the judgment is affirmed.

Contrary to the defendant's contention, we find that the hearing court did not err in denying suppression of the in-court identifications of the defendant by four of the undercover police officers who had acted as purchasers during the three sales in question. At the Wade hearing, the officers testified that each had observed the defendant for a few minutes at close range, and under very good lighting conditions. The record, therefore, supports the hearing court's determination that an independent source existed to support the officers' in-court identifications of the defendant (see, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; see, e.g., People v. Rowan, 199 A.D.2d 546, 547, 605 N.Y.S.2d 398; People v. Di Girolamo, 197 A.D.2d 531, 532-533, 602 N.Y.S.2d 182; People v. Brown, 191 A.D.2d 502, 594 N.Y.S.2d 67; People v. Ericsen, 186 A.D.2d 219, 588 N.Y.S.2d 47; People v. Benbow, 180 A.D.2d 805, 580 N.Y.S.2d 442).

The defendant's contention that he was deprived of a fair trial on the ground that the prosecutor exercised peremptory challenges in a racially discriminatory manner is unpreserved for appellate review (see, People v. Cruz, 200 A.D.2d 581, 606 N.Y.S.2d 291). In any event, even assuming that the defendant presented a prima facie case of discriminatory jury selection, the record supports the trial court's conclusion that the prosecutor articulated racially neutral reasons for excusing the two black prospective jurors in question (see, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; People v. Kern, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235, cert denied 498 U.S. 824, 111 S.Ct. 77, 112 L.Ed.2d 50; People v. Hernandez, 75 N.Y.2d 350, 553 N.Y.S.2d 85, 552 N.E.2d 621, affd 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395; People v. Okehoffurum, 201 A.D.2d 508, 509, 607 N.Y.S.2d 695).

The defendant's contention that the evidence was legally insufficient to establish his guilt is also...