| People v Dark |
| 2014 NY Slip Op 07858 [122 AD3d 1321] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDavan Dark, Also Known as Mike, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), fordefendant-appellant.
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 appeal was held by this Court by order entered March 15,2013, decision was reserved and the matter was remitted to Erie County Court for furtherproceedings (104 AD3d 1158). The proceedings were held and completed.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjuryverdict 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 thirddegree (§ 220.16 [1]). We previously held the case, reserved decision andremitted the matter to County Court to rule on defendant's request for a Wadehearing with respect to the identification procedures referenced in the People's CPL710.30 notice (People v Dark, 104 AD3d 1158, 1159 [2013]). Upon remittal, thecourt concluded that defendant had withdrawn his request for a Wade hearing,and defendant now contends that defense counsel was ineffective for withdrawing thatrequest. We reject that contention.
An attorney's "failure to 'make a motion or argument that has little or no chance ofsuccess' " does not amount to ineffective assistance (People v Caban, 5 NY3d143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], reargdenied 3 NY3d 702 [2004]). Here, two undercover officers were involved in thepurchase of narcotics from defendant on February 4, 2010. Defendant was not arrested atthat time, but he was arrested for a different offense on March 3, 2010. One of the twoundercover officers involved in the February 4, 2010 transaction went to the scene ofdefendant's March 3, 2010 arrest and, while at the scene, that officer used binoculars toidentify defendant, who was handcuffed in the back of a police vehicle less than 50 feetaway. The People correctly concede that such identification was not merely confirmatory(see People v Newball, 76 NY2d 587, 592 [1990]), but even assuming, arguendo,that defense counsel could have established suggestiveness of the identificationprocedure, we agree with the People that defense counsel could have concluded thatthere was an independent source for the identification of defendant by the subjectundercover officer at trial (see People v Claitt, 222 AD2d 1038, 1038-1039[1995], lv denied 88 NY2d 982 [1996]; see generally People v Chipp, 75NY2d 327, 335 [1990], cert denied 498 US 833 [1990]). Specifically, during theFebruary 4, 2010 transaction, the interaction between the subject undercover officer anddefendant lasted for about 10 minutes, and the subject undercover officer was only2