PEOPLE v. BRITO (2004)

 Defendant appeals from a judgment convicting him, upon a jury verdict, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ), criminal possession of a controlled substance in the third degree (§ 220.16[1] ), criminal sale of a controlled substance in the third degree (§ 220.39[1] ) and conspiracy in the fourth degree (§ 105.10 [1] ).   County Court did not abuse its discretion in determining that a prospective juror's promise to be impartial was credible.   Viewing the “entire testimony” of the prospective juror (People v. Torpey, 63 N.Y.2d 361, 368, 482 N.Y.S.2d 448, 472 N.E.2d 298, rearg. denied 64 N.Y.2d 885, 487 N.Y.S.2d 1029, 476 N.E.2d 1008;  see People v. Turner, 6 A.D.3d 1190, 775 N.Y.S.2d 689), we conclude that the court had the discretion to deny defendant's challenge for cause (see People v. Arnold, 96 N.Y.2d 358, 363, 729 N.Y.S.2d 51, 753 N.E.2d 846).   Because defendant thereafter failed to establish that the juror was grossly unqualified, the court properly permitted the juror to continue to serve (see People v. Attanasio, 191 A.D.2d 447, 448, 594 N.Y.S.2d 299, lv. denied 81 N.Y.2d 967, 598 N.Y.S.2d 768, 615 N.E.2d 225).

 We agree with defendant that the court erred in precluding defendant's girlfriend from testifying as a defense witness because she had been present in the courtroom during prior testimony, when the court had failed to issue a sequestration order.   However, we conclude that the error is harmless.   The evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   We reject the contention of defendant that the court erred in admitting the identification testimony of a State Police investigator based on the People's failure to provide notice of that testimony pursuant to CPL 710. 30.   Such notice is not required where, as here, the identification by the investigator was merely confirmatory (see People v. Deleon, 273 A.D.2d 27, 28, 709 N.Y.S.2d 529, lv. denied 95 N.Y.2d 933, 721 N.Y.S.2d 609, 744 N.E.2d 145).

 The court properly determined that the search of the attic at defendant's residence did not exceed the scope of the search warrant for those premises.   Because the attic is accessible only through the upstairs apartment, the attic may be considered part of that upstairs apartment (see People v. Watson, 254 A.D.2d 701, 678 N.Y.S.2d 428, lv. denied 92 N.Y.2d 1055, 685 N.Y.S.2d 433, 708 N.E.2d 190;  cf. People v. Haynes, 258 A.D.2d 971, 685 N.Y.S.2d 875, lv. denied 93 N.Y.2d 1044, 697 N.Y.S.2d 876, 720 N.E.2d 96).   Finally, the court properly denied defendant's motion to suppress evidence obtained from the eavesdropping warrant.   The investigators' affidavits sufficiently “apprise[d] the issuing court of the nature and progress of the investigation, and of the difficulties inherent in the use of normal law enforcement methods, sufficient to ensure that eavesdropping [was] more than just a ‘useful tool’ in the investigation” (People v. Fonville, 247 A.D.2d 115, 119, 681 N.Y.S.2d 420).

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

MEMORANDUM: