Opinion
October 6, 1989
Appeal from the Supreme Court, Onondaga County, Sullivan, J.
Present — Dillon, P.J., Denman, Boomer, Green and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant waived his right to seek a dismissal of the indictment on speedy trial grounds because of his failure to follow the statutory procedure, which requires that a motion to dismiss the indictment on that ground be made in writing (CPL 30.30 [a]; see, People v Lawrence, 64 N.Y.2d 200, 203). His oral application was not sufficient (see, People v Key, 45 N.Y.2d 111, 116).
Defendant did not object to the court's charge on reasonable doubt and we conclude that the charge, when considered in its entirety, correctly conveyed to the jury the proper standard (see, People v Jones, 27 N.Y.2d 222, 226; People v Mitchell, 124 A.D.2d 977; People v Patterson, 76 A.D.2d 891).
As conceded by the People, the conviction of criminal possession of a weapon in the third degree pursuant to Penal Law § 265.02 (4) and the sentence imposed thereon, must be vacated because the count charging the crime and the People's proof did not negate the home exception (see, People v Rodriguez, 113 A.D.2d 337, revd on dissenting opn below 68 N.Y.2d 674). The conviction of criminal possession of a weapon in the third degree pursuant to Penal Law § 265.02 (1) and the sentence imposed thereon may stand.
Although the statements made by defendant to the police should have been suppressed because of the inadequacy of the Miranda warnings, the error was harmless. Without these statements, the evidence of defendant's guilt was overwhelming and there is no reasonable possibility that the verdict would have been different if the statement had been suppressed.
Although the suppression court improperly used the Gates standard in upholding the validity of the search warrant (see, Illinois v Gates, 462 U.S. 213; People v Johnson, 66 N.Y.2d 398, 406; People v Glass, 136 A.D.2d 892, lv denied 71 N.Y.2d 968), we determine that the warrant application is sufficient to satisfy the requirements of the Aguilar-Spinelli rule (Aguilar v Texas, 378 U.S. 108; Spinelli v United States, 393 U.S. 410).