PEOPLE v. FIELDS (2009)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered September 15, 2005, convicting him of criminal sale of a controlled substance in the third degree (two counts), after a nonjury trial, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Katz, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

 The defendant's contention that the photographic identification procedure was unduly suggestive is unpreserved for appellate review, since he failed at the Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) to raise the specific grounds upon which he now challenges the procedure (see CPL 470.05[2];  People v. Lago, 60 A.D.3d 784, 784-785, 875 N.Y.S.2d 178).   In any event, the evidence adduced at the hearing established that the pretrial identification procedure was not unduly suggestive.   The volume of photographs viewed by the undercover officer militates against the presence of suggestiveness (see People v. Mason, 138 A.D.2d 411, 412, 525 N.Y.S.2d 694).   As the photographic identification procedure was not unduly suggestive, the People were not required to establish an independent source for the in-court identification of the defendant (see People v. Mathis, 55 A.D.3d 628, 865 N.Y.S.2d 627).

 The defendant's contention that the record developed at the Wade hearing established that his arrest was made without probable cause is unpreserved for appellate review (see CPL 470.05[2] ).   In any event, the defendant failed to seek a Dunaway hearing (see Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824), and this Court may not rely upon the record of the Wade hearing to decide the merits of an unlitigated ground for suppression (see People v. Cabrera, 61 A.D.3d 884, 877 N.Y.S.2d 213).

The defendant's contentions raised in point three of his brief are unpreserved for appellate review and, in any event, are without merit.   The defendant's contentions raised in points five and six of his brief are without merit.