Opinion
KA 00-02618
November 15, 2002.
Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered September 21, 2000, convicting defendant after a jury trial of murder in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILMY GARRIDO-VALDEZ, DEFENDANT-APPELLANT PRO SE.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (PATRICK H. FIERRO OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HAYES, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Supreme Court properly admitted an audiotape in evidence for the limited purpose of permitting a witness to identify defendant's voice on the audiotape ( see People v. Rodriquez, 247 A.D.2d 841, 842, lv denied 91 N.Y.2d 977). In any event, proof of defendant's guilt was overwhelming and there is no significant probability that defendant would have been acquitted absent the admission of the audiotape. Thus, any error in the admission of the audiotape is harmless ( see People v. Crimmins, 36 N.Y.2d 230, 241-242; People v. Highsmith, 254 A.D.2d 768, 770, lv denied 92 N.Y.2d 983, 1033). We reject the contention of defendant that the court erred in denying his challenges for cause to two prospective jurors. Although those prospective jurors initially expressed views casting doubt on their ability to be impartial in this case, they each ultimately stated unequivocally that they could be fair ( see People v. Chambers, 97 N.Y.2d 417, 419). The sentence is not unduly harsh or severe.
Contrary to the further contention of defendant raised in the pro se supplemental brief, the evidence at the Huntley hearing establishes that he knowingly and intelligently waived his right to counsel after receiving Miranda warnings in Spanish and prior to making his statement to the police ( see People v. Vallejos, 125 A.D.2d 352, lv denied 69 N.Y.2d 834). The court properly denied defendant's request for a missing witness charge with respect to the victim's mother. "The request, made after the close of the proof, was untimely" ( People v. Santiago, 266 A.D.2d 846, lv denied 94 N.Y.2d 925).