Opinion
KA 01-01204.
November 21, 2003.
Appeal from a judgment of Erie County Court (Drury, J.), entered May 16, 2001, convicting defendant after a jury trial of, inter alia, murder in the second degree.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo-Mc Laughlin of Counsel), for Defendant-Appellant.
Jason Smikle, Defendant-Appellant Pro Se.
Frank J. Clark, District Attorney, Buffalo (Steven Meyer of Counsel), for Plaintiff-Respondent.
Before: Present: Pigott, Jr., P.J., Green, Pine, Wisner, and Gorski, JJ.
MEMORANDUM AND ORDER
It is hereby Ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25) and other crimes arising from the shooting of four people in Buffalo. We reject defendant's contention that County Court's Sandoval ruling constituted an abuse of discretion ( see People v Hayes, 97 N.Y.2d 203, 207-208). In any event, even assuming, arguendo, that the court thereby abused its discretion, we conclude that the error is harmless ( see People v Butler, 300 A.D.2d 1103, lv denied 99 N.Y.2d 613; People v Jacobs, 298 A.D.2d 954, 955, lv denied 99 N.Y.2d 559). The proof of guilt is overwhelming, and there is no significant probability that the jury would have acquitted defendant if not for the alleged error ( see People v Ayala, 75 N.Y.2d 422, 431, rearg denied 76 N.Y.2d 773) . Defendant's further contention that the court erred in failing to give an appropriate limiting instruction with respect to the People's cross-examination of defendant concerning three prior bad acts is not preserved for our review ( see CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). We further conclude that the verdict is not against the weight of the evidence ( see People v Bleakley, 69 N.Y.2d 490, 495) and that the sentence is not unduly harsh or severe.
Defendant contends in a pro se supplemental brief that the seizure of his photograph from his apartment by the police was illegal and that the court therefore erred in failing to suppress the identifications made from the photo array that included that photograph. Defendant abandoned his motion to suppress the evidence seized from his apartment, however, and thus his contention is not properly before us ( see People v DiLenola, 245 A.D.2d 1132; People v Rowell, 163 A.D.2d 833, 834, lv denied 76 N.Y.2d 896).