| People v James |
| 2008 NY Slip Op 01561 [48 AD3d 698] |
| February 19, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TravisJames, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Guy Arcidiacono of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen,J.), rendered June 2, 2005, convicting him of criminal sale of a controlled substance in the thirddegree and criminal possession of a controlled substance in the third degree, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The record of the pretrial Wade hearing (see United States v Wade, 388 US218 [1967]) supports the hearing court's determination that the undercover officer's identificationof the defendant from a single photograph was merely confirmatory (see People vWharton, 74 NY2d 921, 923 [1989]; People v Bennett, 31 AD3d 780 [2006]; People v Andrews, 30 AD3d 434[2006]; People v Smith, 293 AD2d 764 [2002]).
Moreover, the Supreme Court properly admitted testimony at trial regarding the undercoverofficer's photographic identification. The defendant opened the door to such testimony throughhis cross-examination of the undercover officer (see People v Andrews, 30 AD3d at 435;People v Johnson, 224 AD2d 635, 636-637 [1996]). Thereafter, the defendant moved toadmit the photograph into evidence, and failed to object to any further testimony regarding thephotograph or its origin. Under these circumstances, the testimony as to the photographicidentification was properly admitted (see People v Andrews, 30 AD3d at 435; Peoplev Johnson, 224 AD2d at 637).[*2]
Viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt (see People vSingh, 297 AD2d 760 [2002]; People v Chavez, 260 AD2d 393 [1999]; see alsoPeople v Gadson, 236 AD2d 421 [1997]). Moreover, upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against theweight of the evidence (see People vRomero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Spolzino, J.P., Miller, Dillon and McCarthy, JJ., concur.