Opinion
July 14, 1992
Appeal from the Oswego County Court, Brandt, J.
Present — Callahan, J.P., Boomer, Green, Fallon and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of two counts each of murder in the second degree (see, Penal Law § 125.25, [3]), burglary in the first and second degrees (see, Penal Law § 140.25, 140.30 Penal) and grand larceny in the third and fourth degrees (see, Penal Law § 155.30, 155.35 Penal). The charges arose from two burglaries and the beating death of defendant's father. Defendant contends that County Court erred in denying his motion to suppress his oral and written statements. In reviewing County Court's determination, we must give great weight to the court's decision because of its ability to assess the credibility of the witnesses. Its findings are not to be disturbed unless clearly erroneous (see, People v. Prochilo, 41 N.Y.2d 759, 761; People v Williams, 174 A.D.2d 969, lv denied 78 N.Y.2d 1015). The record supports the suppression court's finding that defendant made an effective waiver of his Miranda rights, and therefore defendant's motion to suppress the oral and written statements to the police was properly denied (see, People v. Pierce, 175 A.D.2d 584; People v. Williams, supra).
We also find no error in County Court's Sandoval ruling. In view of defendant's extensive criminal history, the court's ruling reflects that it struck a proper balance between the probative value of the evidence and the risk of unfair prejudice to defendant (see, People v. Mattiace, 77 N.Y.2d 269, 275; People v. Sandoval, 34 N.Y.2d 371, 375).
We find no error in the jury selection process. Because our review of the record indicates that defendant had not exhausted his peremptory challenges at the time the jury was seated, an erroneous ruling by County Court denying a challenge for cause would not constitute reversible error in any event (see, CPL 270.20).
Also without merit is defendant's contention that the People's delay in producing the Grand Jury testimony of a prosecution witness warrants reversal (see, CPL 240.45 [a]; People v Rosario, 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866, rearg denied 14 N.Y.2d 876, 15 N.Y.2d 765). Because defendant has failed to demonstrate that the inadvertent error caused substantial prejudice, there is no basis for a reversal (see, People v. Perez, 65 N.Y.2d 154, 159).
There is no merit to defendant's contention that County Court erred by imposing a consecutive sentence. The indictment alleged and defendant was convicted of two burglaries on different premises. Because those were distinct and successive crimes not based on "a single act or omission", County Court was not required to make the sentences run concurrently (Penal Law § 70.25; People v. Tarnowski, 148 A.D.2d 1001, 1002, lv denied 74 N.Y.2d 669; see also, People v. Brathwaite, 63 N.Y.2d 839, 843).
Defendant contends further that County Court erred by admitting a videotape and photographs of the crime scenes and the decedent. Defendant has failed to preserve that argument regarding exhibit 2 and exhibits 4 through 24 (see, CPL 470.05), and we decline to reach it as a matter of discretion in the interest of justice (see, CPL 470.15). It was within the court's discretion to admit the videotape of the murder scene made by police investigators. The exhibit was not offered solely to arouse the jurors' emotions; it served a legitimate function to illustrate relevant evidence and to corroborate other evidence offered by the People (see, People v. Pobliner, 32 N.Y.2d 356, 369-370, cert denied 416 U.S. 905; People v. Ford, 158 A.D.2d 914, 915, lv denied 75 N.Y.2d 966; see also, People v. Ferris, 105 A.D.2d 1136). Although County Court erred in receiving a photograph of the decedent taken two years prior to his death, the error was harmless (see, People v. Ford, supra). The proof of guilt was overwhelming and there was no significant probability that, but for the error, the jury would have acquitted defendant (see, People v. Crimmins, 36 N.Y.2d 230, 242).
We have considered the remainder of defendant's contentions, including those raised in his pro se supplemental brief, and find them to be without merit.