Opinion
December 22, 1995
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Pine, J.P., Fallon, Wesley, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We reject the argument of defendant that he was denied effective assistance of counsel by counsel's failure to move for a Wade hearing to explore the possible suggestive nature of a showup identification procedure that occurred prior to the preliminary hearing. The victim had an independent basis for his identification of defendant; thus, the failure of counsel to move for a Wade hearing did not "seriously compromise * * * defendant's right to a fair trial" (People v Hobot, 84 N.Y.2d 1021, 1022).
The record on appeal is insufficient for us to review the contention of defendant, made in his pro se supplemental brief, that the court improperly denied his pro se motion for reassignment of counsel. Because the record is silent on that issue, it should be raised in a motion pursuant to CPL 440.10.
The sentence is neither unduly harsh nor severe, and we decline to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see, CPL 470.15 [b]).