| People v Dark |
| 2013 NY Slip Op 01652 [104 AD3d 1158] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Davan Dark, Also Known as Mike,Appellant. |
—[*1] Davan Dark, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.),rendered April 11, 2011. The judgment convicted defendant, upon a nonjury verdict, ofcriminal sale of a controlled substance in the third degree and criminal possession of acontrolled substance in the third degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Erie County Court for further proceedings in accordance with the followingmemorandum: Defendant appeals from a judgment convicting him after a nonjury trial ofcriminal 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]). Contrary to defendant's contention, we conclude that the evidence, when viewed inthe light most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), is legally sufficient to establish his identity as the person who sold crack cocaineto the undercover police officers (see People v Brown, 92 AD3d 1216, 1216-1217[2012], lv denied 18 NY3d 992 [2012]; see generally People v Bleakley,69 NY2d 490, 495 [1987]). Viewing the evidence in light of the elements of the crimesin this nonjury trial (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we further conclude that the verdict isnot against the weight of the evidence on the issue of identification (see People v Young, 74 AD3d1471, 1472 [2010], lv denied 15 NY3d 811 [2010]; see generallyBleakley, 69 NY2d at 495). Moreover, defendant's sentence is not unduly harsh orsevere.
Defendant further contends on appeal that he was denied effective assistance ofcounsel because defense counsel failed to assert an agency defense or timely request aWade hearing. We conclude with respect to the failure to assert an agencydefense that defendant received meaningful representation because "there is no denial ofeffective assistance based on the failure to 'make a motion or argument that has little orno chance of success' " (Peoplev Crump, 77 AD3d 1335, 1336 [2010], lv denied 16 NY3d 857 [2011],quoting People v Stultz, 2NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]). Defendantengaged in "[s]alesman-like behavior" by "touting the quality of the product" (Peoplev Roche, 45 NY2d 78, 85, [1978]), and he lacked a [*2]preexisting relationship with the buyers (see People vOrtiz, 76 NY2d 446, 449-450 [1990], remittitur amended 77 NY2d 821[1990]; see also People v Herring, 83 NY2d 780, 782-783 [1994]), who wereundercover police officers. Thus, there was no basis for defense counsel to assert anagency defense on behalf of defendant. We conclude with respect to the alleged failure tomake a timely request for a Wade hearing that the record establishes that defensecounsel in fact timely requested a Wade hearing in his omnibus motion and againrequested a Wade hearing in his motion for a trial order of dismissal.
Defendant also asserts that there was a Brady violation based on the People'sfailure to disclose a photograph that was taken by the cell phone camera of an undercoverofficer, and the failure of the police to preserve the photograph. The record demonstrates,however, both that the People learned at the same time as defendant that the photographhad been taken, and that the photograph was no longer in existence by the time thatdefendant was arrested. Thus, "the prosecution was not required to impart identifyinginformation unknown to them and not within their possession" (People v Hayes, 17 NY3d46, 52 [2011], cert denied 565 US —, 132 S Ct 844 [2011]).Moreover, inasmuch as " '[t]he exculpatory potential of this evidence [is] purelyspeculative, its destruction by the police does not violate the Brady rule' "(People v Smith, 306 AD2d 861, 862 [2003], lv denied 100 NY2d 599[2003]).
Defendant further contends in his pro se supplemental brief that County Court erredin denying his request for a Wade hearing. "There is no indication in the record,however, that the court ruled on the motion; i.e., the court neither granted nor denied iton the record before us" (Peoplev Chattley, 89 AD3d 1557, 1558 [2011]). " 'CPL 470.15 (1) precludes [thisCourt] from reviewing an issue that was either decided in an appellant's favor or was notdecided by the trial court' " (People v Adams, 96 AD3d 1588, 1589 [2012], quoting People v Ingram, 18 NY3d948, 949 [2012]), "and thus the court's failure to rule on the motion cannot bedeemed a denial thereof" (Chattley, 89 AD3d at 1558). We therefore hold thecase, reserve decision and remit the matter to County Court to rule on defendant's requestfor a Wade hearing with respect to the identification procedures referenced in thePeople's CPL 710.30 notice. Present—Scudder, P.J., Fahey, Lindley, Valentinoand Martoche, JJ.