People v. Davis , 614 N.Y.S.2d 120 ( 1994 )

Judgment, Supreme Court, Bronx County (Richard Lee Price, J., on decision denying Wade hearing; William Wallace, J., at Mapp hearing; Joseph Cerbone, J., at plea and sentence), rendered September 25, 1992, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree and attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years, unanimously affirmed.

Defendant’s claim that he should have been granted a Wade hearing is not preserved for appellate review as a matter of law since, having waived his right to appeal as part of a plea bargain, defendant never moved to withdraw his plea prior to sentence or vacate the conviction (see, People v Lopez, 71 NY2d 662, 665), and we decline to review the issue in the interest of justice. If we were to review it, we would find, first, that the waiver was knowing, intelligent and voluntary (see, People v Callahan, 80 NY2d 273, 280, citing People v Seaberg, 74 NY2d 1, 11), and, second that even if it were not, a Wade hearing was properly denied since the information before the court was sufficient to conclude as a matter of law that the identification was spontaneous and not police-arranged (see, People v Omaro, 201 AD2d 324). Concur—Carro, J. P., Wallach, Ross, Rubin and Tom, JJ.