Opinion
KA 02-00048.
February 11, 2004.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered November 8, 2001. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, criminal possession of a weapon in the second degree, grand larceny in the third degree, criminal possession of stolen property in the third degree, criminal possession of stolen property in the fifth degree, and petit larceny.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (SHIRLEY K. DUFFY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment rendered upon a jury verdict convicting him of murder in the second degree (Penal Law § 125.25) and other crimes arising from the murder of an alleged associate in a scheme involving the illegal switching of motor vehicle identification numbers. Defendant's contention that County Court's circumstantial evidence charge was inadequate is not preserved for our review ( see CPL 470.05). Although defendant made a general request for a circumstantial evidence charge, he did not request that any particular language be charged and failed to object to the charge as given ( see People v. De Normand, 1 A.D.3d 1047; People v. Jennings, 273 A.D.2d 828, lv denied 95 N.Y.2d 890). Nor did defendant preserve for our review his additional contentions regarding the alleged failure of the People to preserve evidence of motive and the admissibility of the testimony of the People's handwriting expert ( see 470.05[2]). We decline to exercise our power to review any of those contentions as a matter of discretion in the interest of justice ( see 470.15 [6] [a]).
Contrary to the further contention of defendant, he was not compelled to wear jail garb at trial ( cf. People v. Roman, 35 N.Y.2d 978). The record establishes that, prior to jury selection, the court directed that defendant be provided with a shirt to cover the jail uniform top that he was wearing. After being provided with the shirt, defendant agreed that there was no longer any indication from his clothing that he was a jail inmate and thus he waived any contention that the corrective action taken by the court was inadequate ( see generally People v. Whalen, 59 N.Y.2d 273, 280; People v. McCovery, 254 A.D.2d 751, lv denied 92 N.Y.2d 864).
We conclude that the court properly denied defendant's motion seeking suppression of identification testimony. Contrary to defendant's contention, the People met their initial burden at the hearing through the testimony of the police officers who actually conducted the five identification procedures and by introducing in evidence the photographic array that was used in connection with each identification procedure ( see generally People v. Marquez, 302 A.D.2d 477, 478; People v. Levy, 281 A.D.2d 984, lv denied 96 N.Y.2d 831; People v. Parker, 257 A.D.2d 693, 694, lv denied 93 N.Y.2d 1024). We agree with the court that there was nothing about the array or the procedure that was used that singled defendant out for identification ( see People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833; Levy, 281 A.D.2d at 984; People v. Rogers, 245 A.D.2d 1041).
Defendant also contends that the court erred in receiving a magazine in evidence over his objection that it had been illegally seized from his jail cell without a search warrant. Assuming, arguendo, that the search was illegal, we conclude that receipt of that exhibit in evidence is harmless beyond a reasonable doubt, in light of, inter alia, the overwhelming circumstantial evidence of defendant's guilt ( see People v. Almestica, 42 N.Y.2d 222, 226; People v. Lewis, 196 A.D.2d 833, lv denied 82 N.Y.2d 851). We have reviewed defendant's remaining contentions and conclude that they are without merit.