PEOPLE v. HARLEY (1998)

Judgment, Supreme Court, New York County (Herbert Adlerberg, J., on motion;  Renee White, J., at hearing, jury trial and sentence), rendered June 5, 1996, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

 Defendant's challenge to the motion court's failure to address the Dunaway claim raised in his motion to suppress is unpreserved since defendant, by doing nothing to alert the motion court to the fact that it had overlooked one aspect of his motion, thereby acquiesced in the lack of a ruling (see, People v. Henriquez, 668 N.Y.S.2d 34, lv. denied 91 N.Y.2d 942, 671 N.Y.S.2d 721, 694 N.E.2d 890;  People v. Adams, 246 A.D.2d 315, 666 N.Y.S.2d 416), and we decline to review this claim in the interest of justice.   When defendant belatedly asked the hearing court to rule on his Dunaway claim, the hearing court's response that it would only conduct the Wade hearing previously granted by the motion court did not foreclose defendant from seeking relief from the motion court.

The evidence adduced at the Wade hearing, along with the reasonable inferences to be drawn therefrom, established that the undercover officer made a confirmatory identification (see, People v. Grays, 237 A.D.2d 303, 655 N.Y.S.2d 383, lv. denied 89 N.Y.2d 1035, 659 N.Y.S.2d 866, 681 N.E.2d 1313).

The verdict was not against the weight of the evidence.   We see no reason to disturb the jury's determinations of credibility and reliability of identification testimony.

Defendant was properly sentenced as a second felony offender (see, People v. Searvance, 236 A.D.2d 306, 654 N.Y.S.2d 352, lv. denied 89 N.Y.2d 1041, 659 N.Y.S.2d 871, 681 N.E.2d 1318).

MEMORANDUM DECISION.