Opinion
2004-11080.
April 11, 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.
Gary Greenwald, Chester, N.Y. (Lisa M. Cobb of counsel), for appellant.
Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey of counsel), for respondent.
Before: Krausman, J.P., Mastro, Fisher and Covello, JJ., concur.
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 NY2d 857, 858; People v. Paccione, 259 AD2d 563; People v. Kroll, 162 AD2d 717).
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 NY2d 990; People v. Rago, 24 AD3d 210; People v. Johnson, 21 AD3d 1395, lv denied 5 NY3d 883; People v. Johnson, 293 AD2d 489).
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 NY3d 202) 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 AD2d 368, 369). As a result, any error in submitting the depraved indifference murder count would have been harmless ( cf. People v. Speight, 158 AD2d 729, 729-730).
The defendant's remaining contentions are without merit.