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

418
KA 07-01053
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FRANK RUSSELL, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered March 9, 2007. 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 judgment so appealed from is
unanimously modified on the law by reducing the period of postrelease
supervision imposed for each count to a period of three years and as
modified the judgment is affirmed.

     Memorandum: On appeal from a judgment convicting him following a
bench 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]), defendant
contends that the verdict is against the weight of the evidence. We
reject that contention (see generally People v Bleakley, 69 NY2d 490,
495). Here, “the People presented evidence that defendant did more
than simply direct the undercover officers to a location where they
could purchase crack cocaine” (People v Brown, 50 AD3d 1596, 1597).
Indeed, they presented evidence that defendant offered to drive with
the officers to make the purchase and that he obtained the crack
cocaine from the supplier for them. Consequently, viewing the
evidence in light of the elements of the crimes in this bench trial
(see People v Danielson, 9 NY3d 342, 349), we conclude that County
Court did not fail to give the evidence the weight it should be
accorded (see generally People v Poole, 79 AD3d 1685, 1686; Brown, 50
AD3d at 1598).

     We further reject defendant’s contention that the court erred in
failing to conduct a Wade hearing. “[A]lthough there is no
categorical rule exempting from requested Wade hearings confirmatory
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                                                         KA 07-01053

identifications by police officers by merely labeling them as such . .
., 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” (People v Releford, 73 AD3d
1437, 1438, lv denied 15 NY3d 808 [internal quotation marks omitted];
see People v Wharton, 74 NY2d 921, 922-923; see also People v Boyer, 6
NY3d 427, 432-433; People v Stubbs, 6 AD3d 1109, lv denied 3 NY3d
663).

     We likewise reject defendant’s contention that he was denied
effective assistance of counsel. “[T]he failure of defense counsel to
move to dismiss the indictment pursuant to CPL 30.30 did not
constitute ineffective assistance of counsel inasmuch as such a motion
would not have been successful” (People v McDuffie, 46 AD3d 1385,
1386, lv denied 10 NY3d 867), nor was defense counsel ineffective
based on his failure to challenge the legality of defendant’s arrest
inasmuch as such a challenge also would have been unsuccessful (see
People v Garcia, 75 NY2d 973, 974). Defendant’s further contention
that defense counsel was ineffective in failing to conduct a proper
investigation of the case and to obtain certain records concerning
defendant’s medical treatment is based on matters outside the record
on appeal and thus must be raised by way of a motion pursuant to CPL
440.10 (see People v Cobb, 72 AD3d 1565, 1567, lv denied 15 NY3d 803;
People v Washington, 39 AD3d 1228, 1230, lv denied 9 NY3d 870).

     Defendant also contends that he was denied effective assistance
of counsel based on an alleged conflict of interest with defense
counsel. That contention lacks merit. To prevail on such a
contention, a defendant must prove that “ ‘the conduct of his defense
was in fact affected by the operation of the conflict of interest, or
that the conflict operated on the representation’ ” (People v
Konstantinides, 14 NY3d 1, 10; see People v Alicea, 61 NY2d 23, 31).
Even assuming, arguendo, that there was such a conflict of interest,
we conclude that defendant failed to “ ‘demonstrate that the conduct
of his defense was in fact affected by the operation of [that]
conflict’ ” (People v Cooper, 79 AD3d 1684, 1685, quoting Alicea, 61
NY2d at 31). To the extent that defendant contends that the court
erred in denying defense counsel’s request to be relieved at
sentencing, we conclude that it lacks merit. A conflict of
personalities between a defendant and his or her attorney does not
rise to the level of a conflict of interest impacting the defendant’s
right to a fair trial (see Konstantinides, 14 NY3d at 10).

     Finally, with respect to defendant’s challenge to the sentence
imposed, along with an alleged trial tax imposed by the court, we note
that “[t]he mere fact that a sentence imposed after trial is greater
than that offered in connection with plea negotiations is not proof
that defendant was punished for asserting his right to trial” (People
v Brink, 78 AD3d 1483, 1485 [internal quotation marks omitted]).
Indeed, the record here “ ‘shows no retaliation or vindictiveness
against the defendant for electing to proceed to trial’ ” (People v
Dorn, 71 AD3d 1523, 1524; see People v Powell, ___ AD3d ___ [Feb. 10,
2011]). We reject defendant’s challenge to the severity of concurrent
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                                                        KA 07-01053

determinate terms of incarceration imposed, but we agree with him that
the sentence is illegal insofar as it includes an additional period of
postrelease supervision of 3½ years with respect to each count (see
Penal Law § 70.45 [2] [d]). We therefore modify the judgment by
reducing the period of postrelease supervision to a period of three
years (see People v Smith, 63 AD3d 1625, lv denied 13 NY3d 800; People
v Childres, 60 AD3d 1278, 1279, lv denied 12 NY3d 913).




Entered:   April 1, 2011                       Patricia L. Morgan
                                               Clerk of the Court
