PEOPLE v. MARCHAN

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

The PEOPLE of the State of New York, Respondent, v. Marcel MARCHAN, Defendant-Appellant.

Decided: January 18, 2007

TOM, J.P., FRIEDMAN, NARDELLI, CATTERSON, MALONE, JJ. The Law Office of Tina Kansas, New York (Tina Kansas of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jung Park of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered August 18, 2004, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

 The court properly denied, without a hearing, defendant's motion to suppress identification evidence.   Defendant never disputed the People's allegation that the identifications were confirmatory in that they occurred immediately after the drug transaction, as a planned and integral part of the police procedure (see People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462 [1989] ).   The identification procedures were indistinguishable from those found in Wharton to be confirmatory and exempt from the requirement of a hearing (compare People v. Boyer, 6 N.Y.3d 427, 813 N.Y.S.2d 31, 846 N.E.2d 461 [2006] ).

 The court correctly concluded that, by raising an issue to which the evidence in question was directly relevant, defendant opened the door to evidence about a large quantity of cash, other than prerecorded buy money, that was recovered from his person (see People v. Melendez, 55 N.Y.2d 445, 449 N.Y.S.2d 946, 434 N.E.2d 1324 [1982] ).

We have considered and rejected defendant's remaining arguments.