PEOPLE v. TURNER (1998)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Reynaldo TURNER, Appellant.

Decided: August 31, 1998

MANGANO, P.J., and SULLIVAN, FLORIO and McGINITY, JJ.

Ethel P. Ross, Rye, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Anne C. Feigus of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered November 22, 1996, convicting him of criminal sale of a controlled substance in the fifth degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the identification by a trained undercover police officer who had observed him in a face-to-face sale of narcotics, then again minutes after his arrest, and then 45 minutes later at the stationhouse, is not the kind of identification procedure ordinarily burdened or compromised by suggestiveness so as to warrant a Wade hearing (see, People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462). Furthermore, the strategic choice of the defendant's attorney that the defendant would not testify before the Grand Jury did not constitute ineffective assistance of counsel (see, People v. Foy, 220 A.D.2d 220, 631 N.Y.S.2d 693).

MEMORANDUM BY THE COURT.

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