People v. Smalls

213 A.D.2d 987, 625 N.Y.S.2d 109, 1995 N.Y. App. Div. LEXIS 3772

Opinion

—Judgment unanimously affirmed. Memorandum: We reject the contention that defendant was denied due process of law as the result of the severance granted to a codefendant during the trial. Defendant waived his challenge to the severance by joining that codefendant’s motion (see, People v Alvarez, 198 AD2d 171, lv denied 83 NY2d 802; People v Aezah, 191 AD2d 312, 313, lv denied 81 NY2d 1010; People v Corley, 162 AD2d 1020, lv denied 76 NY2d 892) and by declining County Court’s offer to grant a mistrial (see, People v King, 192 AD2d 556, lv denied 81 NY2d 1075). Moreover, the contention that defendant was denied his right to be tried by a jury of his own choosing because he was compelled to share his peremptory challenges with the codefendants is not preserved for review (see, CPL 470.05 [2]; People v Hilton, 187 AD2d 608, lv denied 81 NY2d 887), and we decline to address that issue as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

The court properly denied defendant’s motion to preclude the identification testimony of a prosecution witness based upon the People’s failure timely to provide a CPL 710.30 notice. The record supports the court’s finding that the identi fication of defendant by that witness, who is defendant’s cousin, was merely confirmatory and thus exempt from the notice and hearing requirements of CPL 710.30 (see, People v Rodriguez, 79 NY2d 445). (Appeal from Judgment of Onondaga County Court, Burke, J.—Murder, 2nd Degree.) Present —Denman, P. J., Green, Fallon, Balio and Boehm, JJ.