People v. Quinitchett

—Appeal by the defendant from a judgment of the County Court, Suffolk County (Vaughn, J.), rendered May 30, 1991, convicting him of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree (two counts), upon a jury verdict, and sentencing him to three indeterminate terms of 25 years to life imprisonment for criminal sale of a controlled substance in the third degree (three counts), all to run consecutively, and two indeterminate terms of 25 years to life imprisonment for criminal possession of a controlled substance in the third degree (two counts), both to run concurrently with each other and with the terms imposed for his convictions of criminal sale of a controlled substance in the third degree. [439] The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification evidence. Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by deleting the provision thereof which provides that the defendant’s sentences for criminal sale of a controlled substance in the third degree are to run consecutively to each other and substituting therefor a provision providing that the sentences are to run concurrently with each other; as so modified, the judgment is affirmed. Contrary to the defendant’s contention, we find that the hearing court did not err in denying suppression of the in-court identifications of the defendant by four of the undercover police officers who had acted as purchasers during the three sales in question. At the Wade hearing, the officers testified that each had observed the defendant for a few minutes at close range, and under very good lighting conditions. The record, therefore, supports the hearing court’s determination that an independent source existed to support the officers’ in-court identifications of the defendant (see, United States v Wade, 388 US 218; see, e.g., People v Rowan, 199 AD2d 546, 547; People v Di Girolamo, 197 AD2d 531, 532-533; People v Brown, 191 AD2d 502; People v Ericsen, 186 AD2d 219; People v Benbow, 180 AD2d 805). The defendant’s contention that he was deprived of a fair trial on the ground that the prosecutor exercised peremptory challenges in a racially discriminatory manner is unpreserved for appellate review (see, People v Cruz, 200 AD2d 581). In any event, even assuming that the defendant presented a prima facie case of discriminatory jury selection, the record supports the trial court’s conclusion that the prosecutor articulated racially neutral reasons for excusing the two black prospective jurors in question (see, Batson v Kentucky, 476 US 79; People v Kern, 75 NY2d 638, cert denied 498 US 824; People v Hernandez, 75 NY2d 350, affd 500 US 352; People v Okehoffurum, 201 AD2d 508, 509). The defendant’s contention that the evidence was legally insufficient to establish his guilt is also unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict [440] of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). Contrary to the defendant’s contention, there is no evidence in the record which indicates that the defendant was punished for exercising his right to a jury trial (see, People v Canute, 190 AD2d 745; People v Sherrod, 181 AD2d 700; People v Brown, 157 AD2d 790, 792). Moreover, the sentencing court properly exercised its discretion in sentencing the defendant as a persistent felony offender (see, Penal Law § 70.10 [2]; CPL 400.20 [1] [b]). We find, however, that under all of the relevant circumstances, including the fact that the sentence imposed exceeded that recommended by the prosecutor, the sentence was excessive to the extent indicated (see, e.g., People v Portillo, 190 AD2d 827). The defendant’s remaining contentions, including those raised in his pro se supplemental brief, are either unpreserved for appellate review or without merit. Mangano, P. J., Thompson, Copertino and Hart, JJ., concur.