Opinion
December 9, 1999
Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered June 23, 1994, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 22 1/2 years to life, unanimously affirmed.
Barbara Jane Hutter for Respondent.
Robert Budner for Defendant-Appellant.
ELLERIN, P.J., NARDELLI, WILLIAMS, RUBIN, ANDRIAS, JJ.
Although it is undisputed that the deceased was killed by nine millimeter bullets fired from a nine millimeter pistol, the court properly received in evidence .380 caliber ammunition recovered from defendant's bedroom one week after the shooting. A ballistics expert testified that .380 caliber ammunition, while not ideally suited for such purpose, could be discharged from a nine millimeter pistol (see, People v. Mirenda, 23 N.Y.2d 439, 453;People v. Del Vermo, 192 N.Y. 470, 478-482; People v. Matias, 112 A.D.2d 897, affd 67 N.Y.2d 1032). This evidence was admissible as tending to prove defendant's possession of a nine millimeter pistol around the time of the incident, and, therefore, his identity as the perpetrator, and its probative value outweighed any prejudicial effect. We note that the court gave limiting instructions and the jury was never asked to consider this evidence as demonstrating a propensity to commit crimes. In any event, were we to find that the court erred in admitting the ammunition, we would find such error to be harmless in light of the overwhelming evidence of defendant's guilt, including the testimony of two eyewitnesses, one of whom was acquainted with defendant.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.