PEOPLE v. RODRIGUEZ (2006)

 Defendant appeals from a judgment convicting him following a jury trial of attempted murder in the second degree (Penal Law §§ 110.00, 125.25[1] ), criminal possession of a weapon in the third degree (§ 265.02[1] ), and arson in the fourth degree (§ 150.05[1] ).   Defendant failed to preserve for our review his contention that a panel of prospective jurors was improperly sworn by the Commissioner of Jurors before voir dire outside the presence of County Court and in violation of CPL 270.15(1) (see CPL 470.05 [2];  People v. Melendez, 205 A.D.2d 392, 393, 613 N.Y.S.2d 395, lv. denied 84 N.Y.2d 829, 617 N.Y.S.2d 150, 641 N.E.2d 171;  see generally People v. Quinones, 18 A.D.3d 330, 331, 795 N.Y.S.2d 47, lv. denied 5 N.Y.3d 809, 803 N.Y.S.2d 38, 836 N.E.2d 1161;  People v. Walters, 12 A.D.3d 953, 785 N.Y.S.2d 192;   People v. Crumes, 249 A.D.2d 211, 671 N.Y.S.2d 263).   We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ), particularly in view of the fact that defendant has not demonstrated any prejudice as a result of the alleged error.   Contrary to defendant's contention, the showup identification by one witness was not unduly suggestive on the ground that it was conducted simultaneously with a confirmatory showup by another witness.  “[T]here is no indication on the record that either witness influenced the other by reason of the joint showing” (People v. Thomas, 105 A.D.2d 1098, 1098, 482 N.Y.S.2d 646;  see generally People v. Bratcher, 291 A.D.2d 878, 878-879, 737 N.Y.S.2d 451, lv. denied 98 N.Y.2d 673, 746 N.Y.S.2d 462, 774 N.E.2d 227).   In any event, we conclude that any error of the court in refusing to suppress identification testimony is harmless beyond a reasonable doubt (see People v. Owens, 74 N.Y.2d 677, 678, 543 N.Y.S.2d 371, 541 N.E.2d 400;  see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 Contrary to defendant's further contention, the court properly admitted in evidence testimony that defendant unsuccessfully attempted to purchase a rifle the day before his commission of the crimes charged.   That testimony was “probative of a legally relevant and material issue,” and its probative value outweighed its prejudicial effect (People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808).   We further conclude that, in view of the evidence that defendant poured gasoline on the victim and fired a flare gun at her, the testimony concerning his failed attempt to purchase a rifle also provided necessary background information and completed the narrative of events (see People v. Mannino, 11 A.D.3d 485, 486, 782 N.Y.S.2d 380, lv. denied 4 N.Y.3d 746, 790 N.Y.S.2d 658, 824 N.E.2d 59).   In any event, we conclude that any error in the admission of the testimony is harmless (see People v. Tyes, 30 A.D.3d 1045, 815 N.Y.S.2d 849;  see generally Crimmins, 36 N.Y.2d at 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   Defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Valderama, 25 A.D.3d 819, 821, 806 N.Y.S.2d 789, lv. denied 6 N.Y.3d 854, 816 N.Y.S.2d 760, 849 N.E.2d 983).   Finally, in view of the specificity of the indictment, the testimony of the victim, and the statements of the prosecutor referring to the flare gun as the weapon that was the subject of the charge of criminal possession of a weapon in the third degree, we conclude that the jury properly convicted defendant of that crime based on his possession of the flare gun (cf. People v. Clark, 6 A.D.3d 1066, 1068, 776 N.Y.S.2d 656, lv. denied 3 N.Y.3d 638, 782 N.Y.S.2d 409, 816 N.E.2d 199;  People v. Burns, 303 A.D.2d 1032, 1033-1034, 757 N.Y.S.2d 199).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: