People v Dark |
2014 NY Slip Op 07858 [122 AD3d 1321] |
November 14, 2014 |
Appellate Division, Fourth Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York, Respondent, v Davan Dark, Also Known as Mike, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of counsel), for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered April 11, 2011. The appeal was held by this Court by order entered March 15, 2013, decision was reserved and the matter was remitted to Erie County Court for further proceedings (104 AD3d 1158). The proceedings were held and completed.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminal possession of a controlled substance in the third degree (§ 220.16 [1]). We previously held the case, reserved decision and remitted the matter to County Court to rule on defendant's request for a Wade hearing with respect to the identification procedures referenced in the People's CPL 710.30 notice (People v Dark, 104 AD3d 1158, 1159 [2013]). Upon remittal, the court concluded that defendant had withdrawn his request for a Wade hearing, and defendant now contends that defense counsel was ineffective for withdrawing that request. We reject that contention.
An attorney's "failure to 'make a motion or argument that has little or no chance of
success' " does not amount to ineffective assistance (People v Caban, 5 NY3d
143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg
denied 3 NY3d 702 [2004]). Here, two undercover officers were involved in the
purchase of narcotics from defendant on February 4, 2010. Defendant was not arrested at
that time, but he was arrested for a different offense on March 3, 2010. One of the two
undercover officers involved in the February 4, 2010 transaction went to the scene of
defendant's March 3, 2010 arrest and, while at the scene, that officer used binoculars to
identify defendant, who was handcuffed in the back of a police vehicle less than 50 feet
away. The People correctly concede that such identification was not merely confirmatory
(see People v Newball, 76 NY2d 587, 592 [1990]), but even assuming, arguendo,
that defense counsel could have established suggestiveness of the identification
procedure, we agree with the People that defense counsel could have concluded that
there was an independent source for the identification of defendant by the subject
undercover officer at trial (see People v Claitt, 222 AD2d 1038, 1038-1039
[1995], lv denied 88 NY2d 982 [1996]; see generally People v Chipp, 75
NY2d 327, 335 [1990], cert denied 498 US 833 [1990]). Specifically, during the
February 4, 2010 transaction, the interaction between the subject undercover officer and
defendant lasted for about 10 minutes, and the subject undercover officer was only
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