THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. WILLIAM RELEFORD DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. WILLIAM J. RELEFORD, DEFENDANT-APPELLANT.

KA 07-00624

Decided: May 07, 2010

PRESENT:  SCUDDER, P.J., PERADOTTO, LINDLEY, AND SCONIERS, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ), defendant contends that County Court erred in determining that the identification of him by the undercover police officer in a showup procedure was confirmatory without first conducting a hearing pursuant to People v. Rodriguez (79 N.Y.2d 445).   We reject that contention.  “ ‘A guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings' “ (People v. Leary, 70 AD3d 1394, 1395, quoting People v. Fernandez, 67 N.Y.2d 686, 688), and the exception set forth in CPL 710.70(2) does not apply here because defendant pleaded guilty before “an order finally denying” his suppression motion was issued (People v. Rodriguez, 33 AD3d 401, lv denied 7 NY3d 904).

In any event, although there is no “categorical rule exempting from requested Wade hearings confirmatory identifications by police officers by merely labeling them as such” (People v. Wharton, 74 N.Y.2d 921, 923), a hearing is not required where the defendant in a “buy and bust” operation is identified “by a trained undercover officer who observed [the] defendant during the face-to-face drug transaction knowing [that the] defendant would shortly be arrested” (Wharton, 74 N.Y.2d at 922;  see People v. Stubbs, 6 AD3d 1109, lv denied 3 NY3d 663;  People v. Blocker, 309 A.D.2d 1240, lv denied 1 NY3d 568).   Here, the identification was made approximately seven minutes after the undercover officer purchased drugs from defendant in a hand-to-hand transaction in broad daylight.   The officer also observed defendant moments before the transaction when defendant told her to drive down the street where the exchange took place.   Under the circumstances, a Rodriguez hearing was not required.

Patricia L. Morgan

Clerk of the Court