PEOPLE v. DIX (1997)

 On appeal from a judgment convicting him of arson in the third degree (Penal Law § 150.10), defendant contends that County Court erred in admitting testimony concerning the “positive indications” of the accelerant-sniffing dog because the foundation proof was insufficient.   Defendant failed to preserve that issue for our review (see, CPL 470.05 [2] ).  Were we to reach the merits, we would agree with defendant that the People failed to lay a proper foundation to establish the reliability of the dog (see, People v. Price, 54 N.Y.2d 557, 564, 446 N.Y.S.2d 906, 431 N.E.2d 267) because neither fire investigator testified to the past performance or effectiveness of the dog as an accelerant-sniffing dog.   The error in the admission of the investigators' testimony, however, is harmless beyond a reasonable doubt.   Proof of defendant's guilt is overwhelming, and there is no significant probability that the error contributed to defendant's conviction (see, People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

We reject the contentions of defendant that his statement was obtained in violation of his right to counsel (see, People v. Ramos, 40 N.Y.2d 610, 389 N.Y.S.2d 299, 357 N.E.2d 955) and was not sufficiently corroborated (see, CPL 60.50;  People v. Booden, 69 N.Y.2d 185, 187, 513 N.Y.S.2d 87, 505 N.E.2d 598).   Finally, we conclude that the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: