SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1153 

KA 11-00966 

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND VALENTINO, 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.

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 appeal was held by this

Court by order entered March 15, 2013, decision was reserved and the

matter was remitted to Erie County Court for further proceedings (104

AD3d 1158). The proceedings were held and completed. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a nonjury verdict 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]). We

previously held the case, reserved decision and remitted 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 (People v Dark, 104 AD3d 1158, 1159). Upon

remittal, the court concluded that defendant had withdrawn his request

for a Wade hearing, and defendant now contends that defense counsel

was ineffective for withdrawing that request. We reject that

contention.

An attorney’s “failure to ‘make a motion or argument that has

little or no chance of success’ ” does not amount to ineffective

assistance (People v Caban, 5 NY3d 143, 152, quoting People v Stultz,

2 NY3d 277, 287, rearg denied 3 NY3d 702). Here, two undercover

officers were involved in the purchase of narcotics from defendant on

February 4, 2010. Defendant was not arrested at that time, but he was

arrested for a different offense on March 3, 2010. One of the two

undercover officers involved in the February 4, 2010 transaction went

to the scene of defendant’s March 3, 2010 arrest and, while at the
-2- 1153 

KA 11-00966 

scene, that officer used binoculars to identify defendant, who was

handcuffed in the back of a police vehicle less than 50 feet away. 

The People correctly concede that such identification was not merely

confirmatory (see People v Newball, 76 NY2d 587, 592), but even

assuming, arguendo, that defense counsel could have established

suggestiveness of the identification procedure, we agree with the

People that defense counsel could have concluded that there was an

independent source for the identification of defendant by the subject

undercover officer at trial (see People v Claitt, 222 AD2d 1038, 1038-

1039, lv denied 88 NY2d 982; see generally People v Chipp, 75 NY2d

327, 335, cert denied 498 US 833). Specifically, during the February

4, 2010 transaction, the interaction between the subject undercover

officer and defendant lasted for about 10 minutes, and the subject

undercover officer was only 21⁄2 feet away from defendant when the

transaction occurred (see People v Maryon, 20 AD3d 911, 912, lv denied

5 NY3d 854; Claitt, 222 AD2d at 1038-1039; see generally People v

Bell, 286 AD2d 940, 940-941, lv denied 97 NY2d 654; People v

Quinitchett, 210 AD2d 438, 439, lv denied 85 NY2d 942; People v Rowan,

199 AD2d 546, 547, lv denied 83 NY2d 810; People v Buchanon, 186 AD2d

864, 866, lv denied 81 NY2d 785, reconsideration denied 81 NY2d 882). 

We therefore conclude that any attempt by defense counsel to suppress

the identification of defendant by the subject undercover officer

through a Wade hearing would have failed, and that defense counsel

thus was not ineffective (see Caban, 5 NY3d at 152; People v Smith,

118 AD3d 1492, 1493). We have considered defendant’s remaining

contention and conclude that it is without merit. 

Entered: November 14, 2014 Frances E. Cafarell

Clerk of the Court