People v. Grays

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered September 6, 1995, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. 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 testimony. Ordered that the judgment is affirmed. As part of a "buy and bust” operation, an undercover police officer purchased four bags of crack cocaine for twenty dollars from the defendant. Within a minute of the transaction, the back-up team apprehended the defendant and, upon a confirmatory identification of the defendant by the undercover officer, arrested him. Twenty dollars of pre-recorded money was recovered from the defendant. A Wade hearing was conducted wherein the defendant moved unsuccessfully to call the undercover officer as his own witness to provide a complete account of the circumstances under which the identification procedure was conducted. While the defendant acknowledges that he does not have an unqualified right to call a witness at a Wade hearing (see, People v Chipp, 75 NY2d 327, cert denied 498 US 833), he nevertheless claims that his case is an exception to the general rule in that the People’s evidence was "noticeably incomplete” without the undercover officer’s testimony (see, People v Harvall, 196 AD2d 553; People v Ford, 188 AD2d 613). The record, however, bears out that the court was provided with the factual detail necessary to assess whether the identification procedure was unconstitutional (see, People v Padilla, 219 AD2d 688). Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a [304] reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). The defendant’s remaining contentions are without merit. Bracken, J. P., Santucci, Krausman and McGinity, JJ., concur.