Appellate Division of the Supreme Court of New York, Second DepartmentAug 1, 1988
143 A.D.2d 103 (N.Y. App. Div. 1988)

August 1, 1988

Appeal from the Supreme Court, Kings County (Vinik, J.).

Ordered that the judgment is affirmed.

As part of an omnibus pretrial motion the defendant sought suppression of "any eyewitness identification testimony". In opposing the motion the People stated that the defendant had failed to set forth sufficient legal or factual grounds as required by CPL 710.20 (6). The suppression motion was denied and the case proceeded to trial. The complainant testified that at the time of the incident he knew the defendant for about 5 or 6 months as a casual acquaintance. The defense elicited that, as part of their investigation, the police showed a photograph of the defendant to the complainant in order to confirm his identity. After the defendant's arrest the complainant attended a confirmatory showup and identified him. In his opening and upon summation the defense counsel argued that the procedures used by the police to confirm the defendant's identity were unduly suggestive and asked the court to take this into account in determining the question of the defendant's guilt.

The defendant argues that his attorney's failure to properly frame the pretrial suppression motion constituted ineffective assistance of counsel in light of his arguments at trial that the identification procedures employed by the police were suggestive. Although the defendant was entitled to a Wade hearing based on his claim that he did not know and had never seen the complainant, the failure of his counsel to obtain a hearing is not in and of itself proof that the defendant received ineffective assistance of counsel (see, People v White, 137 A.D.2d 859; People v Lawton, 134 A.D.2d 454; People v Morris, 100 A.D.2d 630, affd 64 N.Y.2d 803). The evidence indicates that the procedures employed by the police were for the purpose of confirming the defendant's identity and were therefore not subject to suppression. Where, as here, any application to suppress identification testimony would likely have been denied, it was not remiss for counsel to fail to pursue a hearing (see, People v Lawton, supra; People v Boero, 117 A.D.2d 814). A review of the entire record reveals that the defense counsel provided "meaningful representation" (see, People v Baldi, 54 N.Y.2d 137, 147; People v White, supra), and, therefore, the defendant's claim of ineffective assistance is without merit. Thompson, J.P., Bracken, Eiber and Spatt, JJ., concur.