| People v Sumter |
| 2009 NY Slip Op 09782 [68 AD3d 1701] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ibriel Sumter,Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedNovember 15, 2007. The judgment convicted defendant, upon a jury verdict, of criminal sale of acontrolled substance in the third degree (two counts) and criminal possession of a controlledsubstance in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, oftwo counts each of criminal sale of a controlled substance in the third degree (Penal Law §220.39 [1]) and criminal possession of a controlled substance in the third degree (§ 220.16[1]). Defendant failed to preserve for our review his contention that County Court should havesuppressed the in-court identifications of him by three police investigators based on theinsufficiency of the CPL 710.30 notice (see People v Robinson, 28 AD3d 1126, 1129 [2006], lvdenied 7 NY3d 794 [2006]; Peoplev Topolski, 28 AD3d 1159, 1161 [2006], lv dismissed 6 NY3d 898 [2006],lv denied 7 NY3d 764, 795 [2006]). In any event, that contention is without merit. TheCPL 710.30 notice set forth the date of the identification proceeding, the location where itoccurred and the manner of identification, and we thus conclude that the notice was sufficient "tofacilitate . . . defendant's opportunity to challenge" that identification proceeding(People v Lopez, 84 NY2d 425, 428 [1994]; see People v Del Valle, 234 AD2d634, 635 [1996], lv denied 89 NY2d 1010 [1997]; People v Mayers, 233 AD2d407 [1996], lv denied 89 NY2d 944 [1997]). There is no support in the record fordefendant's further contention that multiple identification proceedings occurred in this case.
We agree with defendant, however, that the court erred in admitting in evidence testimonyconcerning the seizure of $1,027 in cash from defendant at the time of his arrest, as well as thecash itself. Defendant was arrested over one month after the drug sales that were the basis for thecharges against him, and the People failed to establish a relationship between that cash and thecharges in question. We thus conclude that defendant's possession of the cash was "too remote tothe issue of [defendant's] intent to sell drugs to outweigh the potential for prejudice inherent inthe admission of evidence which invited the jury to speculate that defendant had previously solddrugs" (People v Corbitt, 221 AD2d 809, 810 [1995]). Nevertheless, we conclude thatthe error is harmless. The evidence of defendant's guilt is overwhelming, and there is nosignificant probability that defendant would have been acquitted but for the error (seegenerally People v [*2]Crimmins, 36 NY2d 230, 241-242[1975]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith,Peradotto, Green and Gorski, JJ.