PEOPLE v. ANDERSON

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

The PEOPLE of the State of New York, Respondent, v. Patrick ANDERSON, Defendant-Appellant.

Decided: October 30, 2001

NARDELLI, J.P., ANDRIAS, LERNER, SAXE and MARLOW, JJ. Christopher Sanders, for Respondent. David B. Perlmutter, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Edward McLaughlin, J. at hearing;  Bonnie Wittner, J. at plea and sentence), rendered March 11, 1997, convicting defendant of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/212 to 7 years, unanimously affirmed.

Defendant's motion to suppress identification testimony was properly denied.   The hearing evidence established that defendant was identified by the undercover officer in a confirmatory showup at the scene.   Accordingly, the showup and in-court identifications were admissible (see, People v. Wharton, 74 N.Y.2d 921, 550 N.Y.S.2d 260, 549 N.E.2d 462).   We reject defendant's contention that the People's proof as to the nature of the identification was defective in that it consisted entirely of hearsay testimony from an officer who did not witness the identification.   That defendant was identified by means of the standard police procedure approved in Wharton was undisputed at the hearing (see, People v. Gonzalez, 80 N.Y.2d 883, 885, 587 N.Y.S.2d 607, 600 N.E.2d 238).   Furthermore, aside from the hearsay testimony, there was circumstantial evidence that clearly established that a confirmatory identification occurred (cf., People v. Gonzalez, 91 N.Y.2d 909, 669 N.Y.S.2d 526, 692 N.E.2d 557).   Similarly, the circumstantial evidence established that the apprehending officers heard and acted upon a radio transmission from the undercover officer containing a detailed description of defendant (id.;   see also, People v. Sabeno, 223 A.D.2d 512, 637 N.Y.S.2d 106, lv. denied 88 N.Y.2d 884, 645 N.Y.S.2d 459, 668 N.E.2d 430).