Opinion
April 28, 1995
Appeal from the Niagara County Court, Hannigan, J.
Present — Green, J.P., Pine, Callahan, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: We reject the contention that evidence concerning an uncharged robbery was improperly admitted. The robbery victim's testimony constituted relevant background information to the charge of criminal possession of stolen property (see, People v McCray, 165 A.D.2d 765, 766, lv denied 77 N.Y.2d 880; see also, People v Haddock, 203 A.D.2d 120, lv denied 84 N.Y.2d 826; People v Thompson, 202 A.D.2d 337, lv denied 83 N.Y.2d 915; People v Martinez, 180 A.D.2d 403, 403-404, lv denied 79 N.Y.2d 1004). The record supports the court's determination that the showup identification of defendants by the police officer was not impermissibly suggestive (see, People v Reed, 197 A.D.2d 866, lv denied 82 N.Y.2d 901). The court's charge on reasonable doubt as a whole conveyed the proper standard of proof, and the characterization of the trial as a "search for the truth", although not favored, does not require reversal (see, People v Carfagna, 212 A.D.2d 960).
We reject the contention of defendant Shanklin that the evidence is insufficient to support his conviction of criminal mischief in the third degree (Penal Law § 145.05). Possession of the damaged property is not an element of that crime.
Defendant Funderburk has failed to preserve for review the contention in his pro se supplemental brief that the court erred in failing to discharge one of the sworn jurors (see, People v Almodovar, 196 A.D.2d 718, lv denied 82 N.Y.2d 890, cert denied ___ US ___, 114 S Ct 2143), and we decline to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). The court properly denied defendant Funderburk's motion to dismiss the indictment on speedy trial grounds (see, CPL 30.20, 30.30 Crim. Proc.).