PEOPLE v. TWITTY (2007)

Appeal by the defendant from a judgment of the County Court, Westchester County (Lange, J.), rendered November 9, 2004, convicting him of criminal sale of a controlled substance in the third degree (two counts), criminal possession of a controlled substance in the third degree (two counts), and criminal possession of a controlled substance in the seventh degree (two counts), after a nonjury trial, and imposing sentence.   The appeal brings up for review the denial, without a hearing (DiBella, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The County Court properly denied that branch of the defendant's omnibus motion which was to suppress the undercover police officer's identification of him.   That identification was confirmatory in nature and not unduly suggestive (see People v. Rodriguez, 79 N.Y.2d 445, 450, 583 N.Y.S.2d 814, 593 N.E.2d 268;  People v. Graham, 283 A.D.2d 885, 886-888, 725 N.Y.S.2d 145;  People v. Jenkins, 230 A.D.2d 806, 807, 646 N.Y.S.2d 535).   A Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) was thus unnecessary (see People v. Wharton, 74 N.Y.2d 921, 922-923, 550 N.Y.S.2d 260, 549 N.E.2d 462;  People v. Andrews, 30 A.D.3d 434, 435, 818 N.Y.S.2d 110, lv. denied 7 N.Y.3d 900, 826 N.Y.S.2d 609, 860 N.E.2d 71;  People v. Simmons, 247 A.D.2d 494, 495, 667 N.Y.S.2d 945).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Villacci, 266 A.D.2d 485, 700 N.Y.S.2d 34;  People v. Metuxrakis, 254 A.D.2d 304, 305, 678 N.Y.S.2d 122).   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 contention raised in Point Three of his brief, regarding the chain of custody of physical evidence admitted at trial, is unpreserved for appellate review and, in any event, is without merit.