| People v Rodriguez |
| 2019 NY Slip Op 08709 [178 AD3d 736] |
| December 4, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Angel Rodriguez, Appellant. |
Richard N. Lentino, Middletown, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (William C. Ghee of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (William L.DeProspo, J.), rendered April 19, 2018, convicting him of criminal sale of a controlled substancein the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up forreview the denial (Nicholas De Rosa, J.), without a hearing, of that branch of the defendant'somnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v Bradshaw, 18 NY3d257, 267 [2011]; People vLopez, 6 NY3d 248, 257 [2006]). The County Court did not adequately explain thenature of the right to appeal, nor did it ensure the defendant's understanding of the distinctionbetween the waiver of his right to appeal and other rights automatically forfeited upon a plea ofguilty (see People v Rivas, 166AD3d 1019 [2018]; People vPelaez, 100 AD3d 803 [2012]). Since the defendant's waiver of the right to appeal wasinvalid, it does not preclude appellate review of his contentions.
However, we agree with the County Court's denial, without a hearing, of that branch of thedefendant's omnibus motion which was to suppress the identification testimony of an undercoverpolice officer who purchased narcotics from the defendant. The undercover officer'sphotographic identification of the defendant, made only minutes after the transaction, wasconfirmatory in nature, thereby obviating the need for a hearing (see People v Wharton,74 NY2d 921, 922-923 [1989]; People vTwitty, 36 AD3d 723, 724 [2007]; People v Andrews, 30 AD3d 434, 435 [2006]; People vPolk, 284 AD2d 416, 417 [2001]).
The defendant's remaining contention is unpreserved for appellate review and, in any event,without merit. Mastro, J.P., Leventhal, Iannacci and Christopher, JJ., concur.