PEOPLE v. ESTRADA (1997)

Judgment, Supreme Court, Bronx County (Fred Eggert, J.), rendered November 28, 1990, convicting defendant, after a jury trial, of murder in the second degree and attempted murder in the second degree, and sentencing him, as a second felony offender, to consecutive terms of 25 years to life and 12 1/2 years to 25 years, respectively, unanimously affirmed.

 The testimony of defendant's accomplice was sufficiently supported by corroborative evidence tending to connect defendant with the commission of the crimes (see, People v. Glasper, 52 N.Y.2d 970, 438 N.Y.S.2d 282, 420 N.E.2d 80), and we find no reason to disturb the jury's findings crediting the testimony of this witness.   Concerning the photographic identification, defendant was given notice thereof in the People's voluntary disclosure form, filed with the court and provided to defendant at his arraignment and, accordingly, his motion to preclude the testimony of the identifying witness was properly denied despite the People's failure to provide CPL 710.30(1)(b) notice (see, People v. St. Martine, 160 A.D.2d 35, 40, 559 N.Y.S.2d 697, lv denied 76 N.Y.2d 990, 563 N.Y.S.2d 779, 565 N.E.2d 528).   In any event, even if the People had failed to provide proper notice pursuant to CPL 710.30, subdivision (3) thereof exempts the evidence from preclusion where, as here, the defendant has moved to suppress such evidence despite the lack of notice (People v. Merrill, 87 N.Y.2d 948, 641 N.Y.S.2d 587, 664 N.E.2d 498).   Finally the court's summary denial of a Wade/ Rodriguez hearing was proper in that defendant did not dispute the People's contention that the photographic identification was confirmatory and that the defendant was personally known to the eyewitness (see People v. Dominguez, 207 A.D.2d 715, 616 N.Y.S.2d 502, lv denied 84 N.Y.2d 907, 621 N.Y.S.2d 524, 645 N.E.2d 1224).   Defendant's challenge to the jury selection procedure is unpreserved (see, People v. Mancuso, 22 N.Y.2d 679, 291 N.Y.S.2d 370, 238 N.E.2d 757, cert denied sub nom. Morganti v. New York, 393 U.S. 946, 89 S.Ct. 320, 21 L.Ed.2d 284), and, in any event, without merit, where the People exercised their peremptory challenges before defendant and did not challenge a prospective juror remaining in the jury box after both parties had a chance to peremptorily challenge that juror (see, People v. Alston, 88 N.Y.2d 519, 647 N.Y.S.2d 142, 670 N.E.2d 426).   Also unpreserved is defendant's claim that the verdicts are repugnant, no objection on this ground having been made before the jury's discharge (see, People v. Alfaro, 66 N.Y.2d 985, 499 N.Y.S.2d 378, 489 N.E.2d 1280), and we decline to review in the interest of justice.   Most of defendant's claims with respect to the court's charge on acting in concert are unpreserved (CPL 470.05[2] ), and the rest are without merit, viewing the charge as a whole (see, People v. Coleman, 70 N.Y.2d 817, 523 N.Y.S.2d 433, 517 N.E.2d 1319;  People v. Sampson, 201 A.D.2d 314, 607 N.Y.S.2d 290, lv denied 83 N.Y.2d 971, 616 N.Y.S.2d 24, 639 N.E.2d 764).   We have considered defendant's other arguments, including that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence, and find them to be without merit.

MEMORANDUM DECISION.