People v. Miller

123 A.D.2d 721, 507 N.Y.S.2d 409, 1986 N.Y. App. Div. LEXIS 60859

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (McNab, J.), rendered November 28, 1983, convicting him of burglary in the second degree, criminal mischief in the fourth degree and possession of burglar’s tools, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court properly admitted into evidence testimony regarding the defendant’s use of an alias, as such testimony is evidence of his consciousness of guilt, and the court gave a limiting instruction regarding the probative value of that evidence (see, People v Yazum, 13 NY2d 302). Furthermore, the People were not required to serve the defendant with notice of their intent to offer into evidence testimony that the defendant gave a fictitious name to the arresting officers, since such information was of a pedigree nature and therefore not properly subject to a motion to suppress under CPL 60.45 (CPL 710.20, 710.30 [1] [a]; People v Rodriquez, 39 NY2d 976; People v Rivera, 26 NY2d 304).

In addition, the trial court’s instruction to the jury that the complainant’s condominium is a dwelling as a matter of law did not constitute reversible error, as that fact was not disputed throughout the trial and the defendant neither asked to have that issue submitted to the jury nor objected to the charge as given (see, People v Walker, 198 NY 329; cf. People v Lewis, 64 NY2d 1031; People v Jackerson, 247 NY 36, rearg denied 248 NY 503).

We have considered the defendant’s contentions regarding his adjudication as a persistent felony offender and the sentence imposed pursuant thereto, and find them to be without merit. Lazer, J. P., Mangano, Bracken and Niehoff, JJ., concur.