People v. Van Wallendael

259 A.D.2d 716, 688 N.Y.S.2d 166, 1999 N.Y. App. Div. LEXIS 2723

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1999
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Kowtna, J.), rendered July 20, 1998, convicting him of arson in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed, and the matter is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (5).

Contrary to the defendant’s contention, the trial court properly denied his motion to preclude voice identification testimony based on the People’s failure to serve him with notice pursuant to CPL 710.30. Notice is not required where, as here, the witnesses and the defendant know one another because, in such a case, there is little or no risk that any suggestiveness in the procedure could lead to misidentification (see, People v Rodriguez, 79 NY2d 445; People v Collins, 60 NY2d 214; People v Tas, 51 NY2d 915).

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

The court’s failure to give the full circumstantial evidence charge requested by the defendant was harmless error, given the overwhelming evidence of the defendant’s guilt (see, People v Brian, 84 NY2d 887, 889; People v Sumter, 173 AD2d 659, 660). Bracken, J. P., Sullivan, Altman and McGinity, JJ., concur.