| People v Releford |
| 2010 NY Slip Op 03984 [73 AD3d 1437] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William J.Releford, Appellant. |
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Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered January16, 2007. The judgment convicted defendant, upon his plea of guilty, of criminal sale of acontrolled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]),defendant contends that County Court erred in determining that the identification of him by theundercover police officer in a showup procedure was confirmatory without first conducting ahearing pursuant to People v Rodriguez (79 NY2d 445 [1992]). We reject thatcontention. " 'A guilty plea generally results in a forfeiture of the right to appellate review of anynonjurisdictional defects in the proceedings' " (People v Leary, 70 AD3d 1394, 1395 [2010], quoting People vFernandez, 67 NY2d 686, 688 [1986]), and the exception set forth in CPL 710.70 (2) doesnot apply here because defendant pleaded guilty before "an order finally denying" hissuppression motion was issued (Peoplev Rodriguez, 33 AD3d 401 [2006], lv denied 7 NY3d 904 [2006]).
In any event, although there is no "categorical rule exempting from requested Wadehearings confirmatory identifications by police officers by merely labeling them as such"(People v Wharton, 74 NY2d 921, 923 [1989]), a hearing is not required where thedefendant in a "buy and bust" operation is identified "by a trained undercover officer whoobserved [the] defendant during the face-to-face drug transaction knowing [that the] defendantwould shortly be arrested" (Wharton, 74 NY2d at 922; see People v Stubbs, 6 AD3d1109 [2004], lv denied 3 NY3d 663 [2004]; People v Blocker, 309 AD2d1240 [2003], lv denied 1 NY3d 568 [2003]). Here, the identification was madeapproximately seven minutes after the undercover officer purchased drugs from defendant in ahand-to-hand transaction in broad daylight. The officer also observed defendant moments beforethe transaction when defendant told her to drive down the street where the exchange took place.Under the circumstances, a Rodriguez hearing was not required.Present—Scudder, P.J., Peradotto, Lindley and Sconiers, JJ.