| People v Cruz |
| 2011 NY Slip Op 08041 [89 AD3d 1464] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Eulese N. Cruz,Also Known as Marco Aguay, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Kristyna S. Mills of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedJanuary 6, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted robbery inthe first degree and criminal sale of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [3]) and criminal saleof a controlled substance in the third degree (§ 220.39 [1]). Defendant entered an Alfordplea with respect to attempted robbery only, and he contends that County Court erred in acceptinghis Alford plea to that crime because the record lacked the requisite strong evidence of guilt tosupport the Alford plea (seegenerally People v Hill, 16 NY3d 811, 814 [2011]). In addition, defendant contends that thecourt was unable to determine whether his Alford plea was the product of a voluntary andrational choice because the prosecutor failed to set forth on the record the evidence against defendantwith respect to the attempted robbery. Defendant failed to move to withdraw his plea or tovacate the judgment of conviction and thus failed to preserve that contention for our review (see People v Hinkle, 56 AD3d 1210[2008]; see also People v Dash, 74AD3d 1859, 1860 [2010], lv denied 15 NY3d 892 [2010]). In any event, defendant'scontention is without merit. " '[T]he record before the court contains strong evidence of actual guilt' "(Hill, 16 NY3d at 814), and thus the court was able to determine that defendant'sAlford plea was " 'the product of a voluntary and rational choice' " (id.).
Defendant failed to preserve for our review his further contention that the court erred in failing toconduct a Darden hearing inasmuch as he did not request such a hearing or challenge theidentity of the confidential informant (see CPL 470.05 [2]; People v Darden, 34NY2d 177, 181 [1974], rearg denied 34 NY2d 995 [1974]), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
Defendant contends that the court erred in refusing to suppress the identifications made [*2]by three confidential informants from a photo array. He contends for thefirst time on appeal that the photo array was unduly suggestive because the photographs were obtainedfrom the Department of Corrections, and thus he failed to preserve his present contention for ourreview (see CPL 470.05 [2]; Peoplev Santiago, 83 AD3d 1471 [2011], lv denied 17 NY3d 800 [2011]). In any event,the fact that the photo array consisted of photographs obtained from the Department of Corrections didnot render it unduly suggestive inasmuch as all of the photographs were obtained therefrom and eachwas captioned "NYS DOCS." Thus, it cannot be said that the origin of the photographs "create[d] asubstantial likelihood that the defendant would be singled out for identification" (People vChipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]).
Finally, defendant also failed to preserve for our review his contention that the court erred in failingto test the reliability of the confidential informants' identifications from the photo array pursuant to thefive-factor analysis set forth in Manson v Brathwaite (432 US 98, 114-116 [1977];see CPL 470.05 [2]; Santiago, 83 AD3d 1471), and we decline to exercise ourpower to review that contention as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]). Present—Centra, J.P., Fahey, Peradotto, Green and Gorski, JJ.