PEOPLE v. MOSS (2002)

 Defendant appeals from a judgment convicting him after a jury trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ).   Contrary to defendant's contention, the People established probable cause for defendant's arrest despite the fact that the arresting officer did not testify at the suppression hearing.   Defendant was arrested within moments of a radio transmission of a completed drug sale, and the evidence at the suppression hearing “permits no other inference but that the testifying officer and the arresting officer both heard the identical transmission and that defendant was arrested as a result of that transmission” (People v. Coleman, 288 A.D.2d 49, 50, 733 N.Y.S.2d 6;  see also People v. Sabeno, 223 A.D.2d 512, 637 N.Y.S.2d 106, lv. denied 88 N.Y.2d 884, 645 N.Y.S.2d 459, 668 N.E.2d 430).   Contrary to the further contention of defendant, Supreme Court properly denied his motion for a Wade hearing with respect to the identification of defendant by two undercover officers shortly after the transaction.   The officers had observed defendant during the face-to-face drug transaction, and thus the identification was merely confirmatory (see People v. Wharton, 74 N.Y.2d 921, 922-923, 550 N.Y.S.2d 260, 549 N.E.2d 462;  People v. Cuthrell, 284 A.D.2d 982, 983, 726 N.Y.S.2d 903).   We further conclude that the court properly denied defendant's request for a Rodriguez hearing (see People v. Rodriguez, 79 N.Y.2d 445, 452-453, 583 N.Y.S.2d 814, 593 N.E.2d 268) to test the People's claim that the identification was merely confirmatory.  “Such a hearing is not required in a classic ‘buy and bust’ undercover operation where the undercover officer identifies the defendant immediately after the transaction (cf., People v. Smith, 203 A.D.2d 495, 610 N.Y.S.2d 594, lv. dismissed 85 N.Y.2d 914, 627 N.Y.S.2d 337, 650 N.E.2d 1339)” (Cuthrell, 284 A.D.2d at 983, 726 N.Y.S.2d 903).   Finally, the sentence is neither unduly harsh nor severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: