PEOPLE v. MIDDLETON (1998)

Judgment, Supreme Court, Bronx County (George Covington, J.), rendered October 30, 1995, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree and resisting arrest, and sentencing him, as a second felony offender, to concurrent terms of 31/212 to 7 years and 1 year, respectively, unanimously affirmed.

 The court's summary denial of defendant's suppression motion was proper since his papers merely contained conclusory assertions that he was not engaging in unlawful activity or suspicious behavior prior to his seizure (see, People v. Seda, 198 A.D.2d 98, 603 N.Y.S.2d 471, lv. denied 82 N.Y.2d 930, 610 N.Y.S.2d 182, 632 N.E.2d 492) or otherwise properly address the factual allegations contained in the felony complaint.

 Defendant was not prejudiced by the expert testimony concerning specific characteristics of the automatic pistol involved in the case.   Such ballistic testimony was admissible as necessary background information concerning the element of operability, was part of the expert's narrative as to his observations, and did not suggest that defendant was a violent person (see, People v. Alvino, 71 N.Y.2d 233, 245, 525 N.Y.S.2d 7, 519 N.E.2d 808).

Defendant's challenges to the court's Allen charge are unpreserved for appellate review, and we decline to review these claims in the interest of justice.   Were we to review these claims, we would find that the charge, as a whole, was proper.

MEMORANDUM DECISION.