Opinion
March 11, 1994
Appeal from the Monroe County Court, Marks, J.
Present — Balio, J.P., Lawton, Doerr, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of murder in the second degree and attempted robbery in the first degree. There is no merit to defendant's contention that the proof is legally insufficient to support the jury verdict or that the verdict is contrary to the weight of evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495).
The suppression court properly determined that use of multiple pretrial identification procedures was not unduly suggestive (see, People v. Jones, 171 A.D.2d 757; People v. Chapman, 161 A.D.2d 1156, lv denied 76 N.Y.2d 854). There was a time lapse of several hours between procedures. There is no contention that either procedure, by itself, was unduly suggestive. Further, the fact that defendant appeared in the same position in both procedures was happenstance.
Although the trial court erred in refusing defendant's request to give an alibi charge, that error was harmless. The trial court clearly and repeatedly instructed the jury that the People had the burden of proof on every issue, including the burden of proving that defendant was the person who committed the crime. Thus, there is no reasonable possibility that the error contributed to the verdict (see, People v. Crimmins, 36 N.Y.2d 230, 237).
The record reveals that, during an in-chambers pretrial conference held in defendant's absence, defense counsel made preliminary inquiry concerning a Sandoval problem but that the court made no determination on Sandoval issues. Because a de novo Sandoval hearing was conducted in defendant's presence immediately prior to jury selection, defendant was not denied his right to be present at a material stage of the proceeding (see, People v. Smith, 186 A.D.2d 976, affd 82 N.Y.2d 254).