PEOPLE v. HOUSTON (2008)

Judgment, Supreme Court, New York County (Michael R. Ambrecht, J. on motion;  William A. Wetzel, J. at plea and sentence), rendered October 23, 2006, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second drug felony offender, to a term of 3 1/212 years, unanimously affirmed.

The court properly denied defendant's motion to suppress identification testimony, without granting a hearing.   Defendant did not preserve his argument that the People failed to provide the motion court with enough information upon which to conclude that the viewing of defendant in this observation sale case was a confirmatory identification for which no Wade hearing was required (see People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462 [1989] ), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the court had sufficient information upon which to make that determination (see People v. Davis, 289 A.D.2d 134, 734 N.Y.S.2d 447 [2001], lv. denied 97 N.Y.2d 753, 742 N.Y.S.2d 613, 769 N.E.2d 359 [2001] ).   As part of a planned operation, the officer deliberately observed defendant and made a prompt identification that fell within the Wharton exception to the requirement of a Wade hearing (compare People v. Boyer, 6 N.Y.3d 427, 813 N.Y.S.2d 31, 846 N.E.2d 461 [2006] ).