PEOPLE v. MARTIN (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Jessica Segal, J.), rendered September 23, 2021, convicting him of attempted criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.  The appeal brings up for review the denial, without a hearing, of those branches of the defendant's omnibus motion which were to suppress identification evidence, to controvert a search warrant and to suppress physical evidence obtained in the execution thereof, and to dismiss the count of the indictment charging him with criminal possession of a weapon in the second degree on the ground that the evidence presented to the grand jury was legally insufficient.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the County Court properly denied, without a hearing, that branch of his omnibus motion which was to suppress identification evidence.  Generally, “where a police officer views a defendant's photograph within a few hours of a drug sale in which the officer previously observed the defendant during a face-to-face drug transaction, the officer's identification of the defendant from the photograph is confirmatory and does not mandate a Wade hearing” (People v Miles, 219 AD2d 685, 686;  see People v Wharton, 74 NY2d 921, 922).  Here, the undercover officer's identification of the defendant from a photo array as the same person who sold him or her narcotics on six separate occasions, which occurred approximately two hours after the most recent controlled purchase, was merely confirmatory (see People v Miles, 219 AD2d at 686–687;  People v Montgomery, 213 AD2d 563, 564, affd 88 NY2d 926).

The County Court properly denied, without a hearing, that branch of the defendant's omnibus motion which was to controvert a search warrant and to suppress the physical evidence seized in the execution thereof.  “A search warrant must be supported by probable cause” (People v Lexune, 236 AD3d 1060, 1061;  see CPL 690.40).  To establish probable cause, “[t]he search warrant application must provide the court with sufficient information to support a reasonable belief that the evidence of illegal activity will be present at the specific time and place of the search” (People v Rivera, 210 AD3d 805, 806 [internal quotation marks omitted] ).  Here, there was probable cause to issue the subject search warrant (see People v El, 248 AD3d 1133, 1134;  People v Bryant, 195 AD3d 744, 745).

“A jurisdictional defect in an indictment may not be waived by a guilty plea and can be raised for the first time on appeal” (People v Guerrero, 28 NY3d 110, 116).  “ ‘An indictment is rendered jurisdictionally defective only if it does not charge the defendant with the commission of a particular crime, by, for example, failing to allege every material element of the crime charged, or alleging acts that do not equal a crime at all’ ” (id., quoting People v Hansen, 95 NY2d 227, 231).  Here, the defendant's challenge to the insufficiency of the indictment's factual allegations does not constitute a jurisdictional defect, and once a plea of guilty has been entered, the sufficiency of the evidence before the grand jury cannot be challenged (see id.;  People v Konieczny, 2 NY3d 569, 572;  People v Novotny, 249 AD3d 1087, 1088).

GENOVESI, J.P., BRATHWAITE NELSON, WAN and LOVE, JJ., concur.