THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAVAN DARK ALSO KNOWN AS MIKE DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ).   We previously held the case, reserved decision and remitted the matter to County Court to rule on defendant's request for a Wade hearing with respect to the identification procedures referenced in the People's CPL 710.30 notice (People v. Dark, 104 AD3d 1158, 1159).   Upon remittal, the court concluded that defendant had withdrawn his request for a Wade hearing, and defendant now contends that defense counsel was ineffective for withdrawing that request.   We reject that contention.

An attorney's “failure to ‘make a motion or argument that has little or no chance of success' “ does not amount to ineffective assistance (People v. Caban, 5 NY3d 143, 152, quoting People v. Stultz, 2 NY3d 277, 287, rearg. denied 3 NY3d 702).   Here, two undercover officers were involved in the purchase of narcotics from defendant on February 4, 2010.   Defendant was not arrested at that time, but he was arrested for a different offense on March 3, 2010.   One of the two undercover officers involved in the February 4, 2010 transaction went to the scene of defendant's March 3, 2010 arrest and, while at the scene, that officer used binoculars to identify defendant, who was handcuffed in the back of a police vehicle less than 50 feet away.   The People correctly concede that such identification was not merely confirmatory (see People v. Newball, 76 N.Y.2d 587, 592), but even assuming, arguendo, that defense counsel could have established suggestiveness of the identification procedure, we agree with the People that defense counsel could have concluded that there was an independent source for the identification of defendant by the subject undercover officer at trial (see People v. Claitt, 222 A.D.2d 1038, 1038–1039, lv denied 88 N.Y.2d 982;  see generally People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833).   Specifically, during the February 4, 2010 transaction, the interaction between the subject undercover officer and defendant lasted for about 10 minutes, and the subject undercover officer was only 21/212 feet away from defendant when the transaction occurred (see People v. Maryon, 20 AD3d 911, 912, lv denied 5 NY3d 854;  Claitt, 222 A.D.2d at 1038–1039;  see generally People v. Bell, 286 A.D.2d 940, 940–941, lv denied 97 N.Y.2d 654;  People v. Quinitchett, 210 A.D.2d 438, 439, lv denied 85 N.Y.2d 942;  People v. Rowan, 199 A.D.2d 546, 547, lv denied 83 N.Y.2d 810;  People v. Buchanon, 186 A.D.2d 864, 866, lv denied 81 N.Y.2d 785, reconsideration denied 81 N.Y.2d 882).   We therefore conclude that any attempt by defense counsel to suppress the identification of defendant by the subject undercover officer through a Wade hearing would have failed, and that defense counsel thus was not ineffective (see Caban, 5 NY3d at 152;  People v. Smith, 118 AD3d 1492, 1493).   We have considered defendant's remaining contention and conclude that it is without merit.

Frances E. Cafarell

Clerk of the Court