PEOPLE v. NEAL (1999)

 Defendant appeals from a judgment convicting him after a jury trial of burglary in the second degree (Penal Law § 140.25 [2] ), assault in the first degree (Penal Law § 120.10[4] ) and assault in the second degree (Penal Law § 120.05[2] ).  County Court did not err in admitting an oral statement made by defendant that was not included in the CPL 710.30 notice.   Defendant was made aware of that statement during the Huntley hearing, and the hearing court ruled that defendant's statements were admissible.   Defendant's suppression motion renders any alleged deficiency in the CPL 710.30 notice irrelevant (see, CPL 710.30[3];  People v. Miles, 251 A.D.2d 1012, 675 N.Y.S.2d 259, lv. denied 92 N.Y.2d 901, 680 N.Y.S.2d 66, 702 N.E.2d 851).   The court properly denied as untimely defendant's request for a missing witness charge, made after defendant rested and at the end of the charge conference (see, People v. Weathersby, 252 A.D.2d 990, 675 N.Y.S.2d 923, lv. denied 92 N.Y.2d 931, 680 N.Y.S.2d 473, 703 N.E.2d 285;  People v. Catoe, 181 A.D.2d 905, 582 N.Y.S.2d 29, lv. denied 79 N.Y.2d 1047, 584 N.Y.S.2d 1014, 596 N.E.2d 412).

 The court erred in refusing to instruct the jury with respect to burglary in the second degree that the People were required to establish that defendant entered the premises with the intent to commit the crime of assault.   The People specified assault as the intended crime in their bill of particulars.   However, that error does not require reversal.   The court instructed the jury that the People were required to establish that, at the time of entry, defendant intended to commit a crime, rather than “any crime” (People v. Thomas J.S., 61 A.D.2d 1018, 402 N.Y.S.2d 616;  see, People v. Rivera, 56 A.D.2d 701, 392 N.Y.S.2d 516).   Because the People specified throughout the trial that defendant intended to commit an assault and because assault was the only other crime charged, it cannot be said that the court's instruction confused the jury with respect to the intent element of burglary in the second degree.   We conclude that the charge as a whole conveyed the appropriate legal standard (see, People v. Cruz, 183 A.D.2d 476, 477, 583 N.Y.S.2d 409, lv. denied 80 N.Y.2d 902, 588 N.Y.S.2d 828, 602 N.E.2d 236).

Judgment unanimously affirmed.

MEMORANDUM: