PEOPLE v. BELL

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Robert BELL, Defendant-Appellant.

Decided: September 28, 2001

PRESENT:  PIGOTT, JR., P.J., PINE, WISNER, BURNS and LAWTON, JJ. John E. Tyo, for defendant-appellant.Mary Anne Kolb, for plaintiff-respondent.

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and sentencing him as a second felony offender to a term of imprisonment of 5 to 10 years.   We reject the contention of defendant that County Court erred in denying his motion to suppress the identification of defendant by an undercover police officer.   The officer identified defendant from a single photograph approximately 40 minutes after having left him, and thus the identification was confirmatory (see, People v. Montgomery, 213 A.D.2d 563, 564, 623 N.Y.S.2d 921, affd. 88 N.Y.2d 926, 647 N.Y.S.2d 162, 670 N.E.2d 446;  People v. Almonte, 181 A.D.2d 736, 581 N.Y.S.2d 67, lv. denied 81 N.Y.2d 1069, 601 N.Y.S.2d 588, 619 N.E.2d 666).   In any event, the officer viewed defendant in proximity for 15 to 20 minutes in daylight and therefore had an independent basis for her identification (see, People v. Weems, 186 A.D.2d 1073, 590 N.Y.S.2d 806, lv. denied 81 N.Y.2d 767, 594 N.Y.S.2d 730, 610 N.E.2d 403;  People v. Buchanon, 186 A.D.2d 864, 866, 588 N.Y.S.2d 933, lv. denied 81 N.Y.2d 785, 594 N.Y.S.2d 732, 610 N.E.2d 405, 81 N.Y.2d 882, 597 N.Y.S.2d 943, 613 N.E.2d 975).   We further reject the contention of defendant that it is apparent from the court's conduct at the Wade hearing that he did not receive a fair and impartial decision.   The court merely attempted to conduct the proceeding in an efficient manner.   The sentence is neither unduly harsh nor severe.   We have examined defendant's remaining contentions in the pro se supplemental brief and conclude that they are without merit.

Judgment unanimously affirmed.

MEMORANDUM: