PEOPLE v. GRIFFIN (2006)

Appeal by the defendant from a judgment of the County Court, Orange County (Rosenwasser, J.), rendered November 22, 2004, convicting him of murder in the second degree, criminal possession of a weapon in the fourth degree, and stalking in the fourth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, without a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the Supreme Court properly denied, without a hearing, that branch of his omnibus motion which was to suppress evidence seized pursuant to a search warrant.   The affidavit upon which the warrant was issued contained information sufficient to support a reasonable belief that evidence of illegal activity would be present at the premises to be searched (see People v. Pinchback, 82 N.Y.2d 857, 858, 609 N.Y.S.2d 158, 631 N.E.2d 100;  People v. Paccione, 259 A.D.2d 563, 688 N.Y.S.2d 559;   People v. Kroll, 162 A.D.2d 717, 558 N.Y.S.2d 87).

 Moreover, in light of the direct evidence of the defendant's guilt, including his own statements to the police, the court properly declined to give the jury a circumstantial evidence charge (see People v. Daddona, 81 N.Y.2d 990, 599 N.Y.S.2d 530, 615 N.E.2d 1014;  People v. Rago, 24 A.D.3d 210, 806 N.Y.S.2d 41;  People v. Johnson, 21 A.D.3d 1395, 804 N.Y.S.2d 162, lv. denied 5 N.Y.3d 883, 808 N.Y.S.2d 586, 842 N.E.2d 484;  People v. Johnson, 293 A.D.2d 489, 739 N.Y.S.2d 636).

 The defendant's claim that the court erred in submitting to the jury a count of depraved indifference murder as an alternative to intentional murder (see People v. Suarez, 6 N.Y.3d 202, 811 N.Y.S.2d 267, 844 N.E.2d 721) is foreclosed because the defendant was convicted of intentional murder and the jury, pursuant to the court's instructions, never reached the depraved indifference murder count (cf. People v. Falcon, 281 A.D.2d 368, 369, 722 N.Y.S.2d 538).   As a result, any error in submitting the depraved indifference murder count would have been harmless (cf. People v. Speight, 158 A.D.2d 729, 729-730, 552 N.Y.S.2d 176).

The defendant's remaining contentions are without merit.