        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

92
KA 11-00966
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVAN DARK, ALSO KNOWN AS MIKE,
DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DAVAN DARK, DEFENDANT-APPELLANT PRO SE.

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 judgment convicted
defendant, upon a nonjury verdict, of criminal sale of a controlled
substance in the third degree and criminal possession of a controlled
substance in the third degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Erie County Court for further
proceedings in accordance with the following Memorandum: Defendant
appeals from a judgment convicting him after a nonjury trial 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]). Contrary to defendant’s contention, we
conclude that the evidence, when viewed in the light most favorable to
the People (see People v Contes, 60 NY2d 620, 621), is legally
sufficient to establish his identity as the person who sold crack
cocaine to the undercover police officers (see People v Brown, 92 AD3d
1216, 1216-1217, lv denied 18 NY3d 992; see generally People v
Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the
elements of the crimes in this nonjury trial (see People v Danielson,
9 NY3d 342, 349), we further conclude that the verdict is not against
the weight of the evidence on the issue of identification (see People
v Young, 74 AD3d 1471, 1472, lv denied 15 NY3d 811; see generally
Bleakley, 69 NY2d at 495). Moreover, defendant’s sentence is not
unduly harsh or severe.

     Defendant further contends on appeal that he was denied effective
assistance of counsel because defense counsel failed to assert an
agency defense or timely request a Wade hearing. We conclude with
                                 -2-                            92
                                                         KA 11-00966

respect to the failure to assert an agency defense that defendant
received meaningful representation because “there is no denial of
effective assistance based on the failure to ‘make a motion or
argument that has little or no chance of success’ ” (People v Crump,
77 AD3d 1335, 1336, lv denied 16 NY3d 857, quoting People v Stultz, 2
NY3d 277, 287, rearg denied 3 NY3d 702). Defendant engaged in
“[s]alesman-like behavior” by “touting the quality of the product”
(People v Roche, 45 NY2d 78, 85, cert denied 439 US 958), and he
lacked a preexisting relationship with the buyers (see People v Ortiz,
76 NY2d 446, 449-450, remittitur amended 77 NY2d 821; see also People
v Herring, 83 NY2d 780, 782-783), who were undercover police officers.
Thus, there was no basis for defense counsel to assert an agency
defense on behalf of defendant. We conclude with respect to the
alleged failure to make a timely request for a Wade hearing that the
record establishes that defense counsel in fact timely requested a
Wade hearing in his omnibus motion and again requested a Wade hearing
in his motion for a trial order of dismissal.

     Defendant also asserts that there was a Brady violation based on
the People’s failure to disclose a photograph that was taken by the
cell phone camera of an undercover officer, and the failure of the
police to preserve the photograph. The record demonstrates, however,
both that the People learned at the same time as defendant that the
photograph had been taken, and that the photograph was no longer in
existence by the time that defendant was arrested. Thus, “the
prosecution was not required to impart identifying information unknown
to them and not within their possession” (People v Hayes, 17 NY3d 46,
52, cert denied ___ US ___, 132 S Ct 844). Moreover, inasmuch as
“ ‘[t]he exculpatory potential of this evidence [is] purely
speculative, its destruction by the police does not violate the Brady
rule’ ” (People v Smith, 306 AD2d 861, 862, lv denied 100 NY2d 599).

     Defendant further contends in his pro se supplemental brief that
County Court erred in denying his request for a Wade hearing. “There
is no indication in the record, however, that the court ruled on the
motion; i.e., the court neither granted nor denied it on the record
before us” (People v Chattley, 89 AD3d 1557, 1558). “ ‘CPL 470.15 (1)
precludes [this Court] from reviewing an issue that was either decided
in an appellant’s favor or was not decided by the trial court’ ”
(People v Adams, 96 AD3d 1588, 1589, quoting People v Ingram, 18 NY3d
948, 949), “and thus the court’s failure to rule on the motion cannot
be deemed a denial thereof” (Chattley, 89 AD3d at 1558). We therefore
hold the case, reserve decision and remit 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.




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
