PEOPLE v. JAMES (2008)

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered June 2, 2005, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The record of the pretrial Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) supports the hearing court's determination that the undercover officer's identification of the defendant from a single photograph was merely confirmatory (see People v. Wharton, 74 N.Y.2d 921, 923, 550 N.Y.S.2d 260, 549 N.E.2d 462;  People v. Bennett, 31 A.D.3d 780, 818 N.Y.S.2d 479;  People v. Andrews, 30 A.D.3d 434, 818 N.Y.S.2d 110;  People v. Smith, 293 A.D.2d 764, 741 N.Y.S.2d 448).

Moreover, the Supreme Court properly admitted testimony at trial regarding the undercover officer's photographic identification.   The defendant opened the door to such testimony through his cross examination of the undercover officer (see People v. Andrews, 30 A.D.3d at 435, 818 N.Y.S.2d 110;  People v. Johnson, 224 A.D.2d 635, 636-637, 639 N.Y.S.2d 409).   Thereafter, the defendant moved to admit the photograph into evidence, and failed to object to any further testimony regarding the photograph or its origin.   Under these circumstances, the testimony as to the photographic identification was properly admitted (see People v. Andrews, 30 A.D.3d at 435, 818 N.Y.S.2d 110;  People v. Johnson, 224 A.D.2d at 637, 639 N.Y.S.2d 409).

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. Singh, 297 A.D.2d 760, 747 N.Y.S.2d 552;  People v. Chavez, 260 A.D.2d 393, 688 N.Y.S.2d 563;  see also People v. Gadson, 236 A.D.2d 421, 653 N.Y.S.2d 616). Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).