Opinion
March 17, 1995
Appeal from the Onondaga County Court, Burke, J.
Present — Denman, P.J., Green, Fallon, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: We reject the contention that defendant was denied due process of law as the result of the severance granted to a codefendant during the trial. Defendant waived his challenge to the severance by joining that codefendant's motion (see, People v. Alvarez, 198 A.D.2d 171, lv denied 83 N.Y.2d 802; People v. Aezah, 191 A.D.2d 312, 313, lv denied 81 N.Y.2d 1010; People v. Corley, 162 A.D.2d 1020, lv denied 76 N.Y.2d 892) and by declining County Court's offer to grant a mistrial (see, People v. King, 192 A.D.2d 556, lv denied 81 N.Y.2d 1075). Moreover, the contention that defendant was denied his right to be tried by a jury of his own choosing because he was compelled to share his peremptory challenges with the codefendants is not preserved for review (see, CPL 470.05; People v. Hilton, 187 A.D.2d 608, lv denied 81 N.Y.2d 887), and we decline to address that issue as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
The court properly denied defendant's motion to preclude the identification testimony of a prosecution witness based upon the People's failure timely to provide a CPL 710.30 notice. The record supports the court's finding that the identification of defendant by that witness, who is defendant's cousin, was merely confirmatory and thus exempt from the notice and hearing requirements of CPL 710.30 (see, People v. Rodriguez, 79 N.Y.2d 445).