| People v Dash |
| 2008 NY Slip Op 03468 [50 AD3d 914] |
| April 15, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Juavon C. Dash, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.),rendered June 30, 2005, convicting him of criminal sale of a controlled substance in the thirddegree (four counts), criminal possession of a controlled substance in the third degree, andcriminal possession of a controlled substance in the fourth degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress identification evidence.
Ordered that the judgment is affirmed.
The County Court properly denied that branch of the defendant's omnibus motion which wasto suppress the confidential informant's identification. That identification was confirmatory innature and was not unduly suggestive (see People v Rodriguez, 79 NY2d 445, 450[1992]; People v Graham, 283 AD2d 885, 886 [2001]).
Moreover, the defendant's contention that the County Court erred in summarily denying thatbranch of his omnibus motion which was to suppress physical evidence without a hearing is alsowithout merit. "Hearings are not automatic or generally available for the asking by boilerplateallegations" (People v Mendoza, 82 NY2d 415, 422 [1993]). The defendant failed todeny the People's allegations that he had sold cocaine to confidential informants on four separateoccasions, and thus failed to raise any issue of fact requiring a Mapp hearing (seeMapp v Ohio, 367 US 643 [1961]) regarding probable cause (cf. People v Burton, 6 NY3d 584,587 [2006]).[*2]
The defendant's contention that the County Court erred indenying his motion for a mistrial on the ground that the People had placed the defendant's prioruncharged crimes before the jury without a Molineux hearing (see People vMolineux, 168 NY 264 [1901]) is without merit. The People did not introduce any evidenceof prior uncharged crimes (see generally People v Molineux, 168 NY at 293; see alsoPeople v Manino, 306 AD2d 542 [2003]; People v Balazs, 258 AD2d 658, 659[1999]; People v Cornish, 280 AD2d 552, 553 [2001]).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]). In any event, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that itwas legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover,resolution of issues of credibility is primarily a matter to be determined by the jury, which sawand heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied542 US 946 [2004]). Upon the exercise of our factual review power (see CPL 470.15[5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.