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

413
KA 09-01473
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID ALLIGOOD, DEFENDANT-APPELLANT.


TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (ERIC M. DOLAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered May 8, 2009. The judgment convicted defendant,
upon a jury verdict, of criminal sale of a controlled substance in or
near school grounds, 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 affirmed.

     Memorandum: On appeal from a judgment convicting him following a
jury trial of, inter alia, criminal sale of a controlled substance in
the third degree (Penal Law § 220.39 [1]), defendant contends that he
was deprived of effective assistance of counsel because his trial
attorney waived his right to a Wade hearing that County Court had
ordered with respect to the photo array identification of him by an
undercover police officer. As a preliminary matter, we note that it
is not clear from the record whether the court granted defendant a
Wade hearing; the court merely stated that, because defense counsel
was not yet in a position to concede that the identification of
defendant was confirmatory, as the People had argued, “we will have an
identification hearing.” It is therefore possible that the court
intended merely to conduct a Rodriguez hearing to determine whether
the identification was confirmatory (see People v Rodriguez, 79 NY2d
445, 449-450; People v Green, 70 AD3d 1392, 1392). Moreover, there is
no evidence in the record that defense counsel “waived” defendant’s
right to a suppression hearing. Although a suppression hearing was
not held, the record is silent with respect to the reason why. Thus,
defendant’s contention is based on matters outside the record and must
be raised, if at all, by way of a motion pursuant to CPL article 440
(see People v Washington, 128 AD3d 1397, 1399; People v Kreutter, 121
AD3d 1534, 1535, lv denied 25 NY3d 990; People v Brown, 120 AD3d 1545,
                                 -2-                           413
                                                         KA 09-01473

1546, lv denied 24 NY3d 1082). In any event, we note that it cannot
be said on this record that defendant had a “ ‘colorable’ ” claim that
the identification evidence should have been suppressed (People v
Garcia, 75 NY2d 973, 974; see People v Rivera, 71 NY2d 705, 709;
People v Carver, 124 AD3d 1276, 1279).




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
