PEOPLE v. SOTO (2005)

Appeal by the defendant from a judgment of the County Court, Westchester County (Adler, J.), rendered December 16, 2003, convicting him of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree, and criminal possession of a controlled substance in the third degree, upon a jury verdict, 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 hearing court properly denied that branch of the defendant's omnibus motion which was to suppress the identification testimony of the undercover officer who purchased cocaine from him.   The undercover officer's photo identification of the defendant approximately 40 minutes after the drug sale was an integral part of proper police procedure (see People v. Smith, 293 A.D.2d 764, 741 N.Y.S.2d 448;  People v. Banks, 242 A.D.2d 726, 663 N.Y.S.2d 46;  People v. Miles, 219 A.D.2d 685, 631 N.Y.S.2d 727;  People v. Montgomery, 213 A.D.2d 563, 623 N.Y.S.2d 921, affd. 88 N.Y.2d 926, 647 N.Y.S.2d 162, 670 N.E.2d 446).   Moreover, the defendant's contention that the People were required to provide him with notice of the identification testimony of the officers who witnessed one of the buys is without merit.   There was no previous identification of the defendant by the officers and, thus, no such notice was required (see CPL 710.30;  People v. Trammel, 84 N.Y.2d 584, 620 N.Y.S.2d 754, 644 N.E.2d 1310;  People v. Romano, 282 A.D.2d 764, 724 N.Y.S.2d 348, cert. denied 535 U.S. 1020, 122 S.Ct. 1613, 152 L.Ed.2d 626;  People v. Rohan, 214 A.D.2d 755, 625 N.Y.S.2d 948).

 The verdict of guilt was not against the weight of the evidence or inconsistent with the jury's inability to reach a verdict on the other counts of the indictment (see CPL 470.15[5] ).   The resolution of issues of credibility, as well as the weight to be accorded to evidence presented, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses (see People v. Gaimari, 176 N.Y. 84, 95, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).

The defendant's remaining contentions are without merit.