| People v Houston |
| 2008 NY Slip Op 00061 [47 AD3d 424] |
| January 8, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v EdHouston, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Eric Rosen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael R. Ambrecht, J., on motion; WilliamA. Wetzel, J., at plea and sentence), rendered October 23, 2006, convicting defendant, upon hisplea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him,as a second drug felony offender, to a term of 3½ years, unanimously affirmed.
The court properly denied defendant's motion to suppress identification testimony, withoutgranting a hearing. Defendant did not preserve his argument that the People failed to provide themotion court with enough information upon which to conclude that the viewing of defendant inthis observation sale case was a confirmatory identification for which no Wade hearingwas required (see People v Wharton, 74 NY2d 921 [1989]), and we decline to review itin the interest of justice. Were we to review this claim, we would find that the court hadsufficient information upon which to make that determination (see People v Davis, 289AD2d 134 [2001], lv denied 97 NY2d 753 [2002]). As part of a planned operation, theofficer deliberately observed defendant and made a prompt identification that fell within theWharton exception to the requirement of a Wade hearing (compare People v Boyer, 6 NY3d427 [2006]). Concur—Lippman, P.J., Mazzarelli, Gonzalez, Sweeny and McGuire, JJ.