Opinion
November 13, 2000.
Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Criminal Trespass, 1st Degree.
PRESENT: GREEN, J. P., PINE, HAYES, SCUDDER AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him of criminal trespass in the first degree (Penal Law § 20.00, 140.17), criminal possession of a weapon in the third degree (Penal Law § 20.00, 265.02) and two counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 20.00, 220.03), defendant contends that Supreme Court erred in denying his motion to suppress tangible evidence on the ground that defendant lacked standing to challenge the search. Defendant has failed to preserve for our review his contention that he had automatic standing to challenge the search of the premises ( see, People v. Hooks, 258 A.D.2d 954, lv denied 93 N.Y.2d 972), and he failed otherwise to meet his initial burden of establishing that he had a legitimate expectation of privacy in the apartment or the items seized ( see, People v. Christian, 248 A.D.2d 960, lv denied 91 N.Y.2d 1006; see also, People v. Sanchez-Reyes, 172 A.D.2d 1034, lv denied 78 N.Y.2d 926). In any event, we previously concluded on the appeal of a codefendant that the search executed at that apartment was valid based on the consent of the tenant ( People v. Cruz, 272 A.D.2d 922, lv granted 95 N.Y.2d 859).
The conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Contrary to the contention of defendant, there is sufficient evidence that the shotgun barrel measured less than 18 inches in length ( see, Penal Law § 265.00 [b]) and that it was measured when cocked ( see, Penal Law § 265.00). Also contrary to defendant's contention, the court did not err in failing to instruct the jury concerning missing witnesses; defendant's request for such a charge, made after the close of proof, was untimely ( see, People v. Santiago, 266 A.D.2d 846, lv denied 94 N.Y.2d 925; see also, People v. Bender, 244 A.D.2d 910, lv denied 91 N.Y.2d 923). We reject defendant's contention that the court erred in instructing the jury on accomplice liability. There was evidence that defendant intentionally aided his codefendants in the possession of the weapon and the narcotics ( see, People v. Page, 105 A.D.2d 930, 932 ; see also, People v. Cuesta, 199 A.D.2d 101, 101-102, lv denied 83 N.Y.2d 870).
Defendant has failed to preserve for our review his contention that the verdict is repugnant and inconsistent ( see, People v. Alfaro, 66 N.Y.2d 985, 987; People v. Satloff, 56 N.Y.2d 745, 746, rearg denied 57 N.Y.2d 674; People v. Roth, 256 A.D.2d 1206, 1207), and we decline to exercise our power to address that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]). Defendant's remaining contentions lack merit ( see, People v. Cruz, supra).