Opinion
Decided December 23, 1999
Appeal from a judgment of the Supreme Court (Lamont, J.), rendered December 11, 1998 in Albany County, upon a verdict convicting defendant of four counts of the crime of criminal possession of a weapon in the third degree.
Sandra M. Colatosti, Albany, for appellant.
Sol Greenberg, District Attorney (Mirriam Z. Seddiq of counsel), Albany, for respondent.
Before: MIKOLL, J.P., MERCURE, YESAWICH JR., PETERS and GRAFFEO, JJ.
MEMORANDUM AND ORDER
Defendant's conviction arises out of the seizure of two firearms from the apartment in which defendant and his girlfriend, Michelle Perkinson, resided. Prior to defendant's arrest, Perkinson notified defendant's parole officer that defendant was storing loaded guns at their residence. Several parole officers proceeded to the home, where they discovered a loaded handgun and sawed-off shotgun in a duffel bag in a bedroom closet. Thereafter, defendant was arrested and indicted on four counts of criminal possession of a weapon in the third degree (see, Penal Law § 265.02, [4]). At the conclusion of the jury trial, defendant was found guilty of all four counts and sentenced as a second felony offender to indeterminate terms of imprisonment of 3+ to 7 years for each of the first two counts of the indictment and 7 years for each of the second two counts of the indictment, to run concurrently, but consecutively to any undischarged indeterminate term of imprisonment remaining from a prior judgment of conviction.
Defendant appeals, contending that the portion of Perkinson's testimony with respect to an uncharged crime was inadmissible. Perkinson testified that she and defendant had a conversation in which defendant revealed that he and his brother had been involved in a shooting incident the night prior to the seizure of the weapons. Initially, we note that the defense merely objected to the prosecutor's questioning as leading, and therefore the admissibility of such evidence was not properly preserved for appeal (see, People v. Gorman, 125 A.D.2d 733, 734, lv denied 69 N.Y.2d 880).
Counsel for defendant acknowledges that this issue was not properly preserved for appeal.
In any event, were we to consider this issue, we would conclude that defendant's admission to Perkinson was admissible. Evidence of an uncharged crime is admissible where it is probative of an element of the crime charged and its probative value outweighs its potentially prejudicial effect (see, People v. Blair, 90 N.Y.2d 1003, 1004-1005). The fact that Perkinson, deemed by Supreme Court to be a hostile prosecution witness, testified that defendant told her he was involved in a shooting the night before was probative of whether he knowingly possessed the weapons, an element of the crime charged (see, Penal Law § 265.02; People v. Tolbert, 253 A.D.2d 832, lv denied 92 N.Y.2d 1039; People v. Marino, 212 A.D.2d 735, lv denied 86 N.Y.2d 797;People v. Sundquist, 175 A.D.2d 319, 321). Under these circumstances, the probative value of the testimony outweighed any prejudicial impact of the testimony (see, People v. Ross, 228 A.D.2d 718, 719, lv denied 88 N.Y.2d 993; People v. Dennis, 210 A.D.2d 803, 805, lv denied 85 N.Y.2d 937; People v. Watson, 177 A.D.2d 676, 676-677, lv denied 79 N.Y.2d 954), especially since Supreme Court instructed the jury to consider this evidence only with respect to defendant's alleged knowledge of the weapons.
Next, we reject defendant's assertion that he was denied effective assistance of counsel based primarily on his attorney's alleged failure to allow him to testify before the Grand Jury. Even assuming arguendo that counsel failed to effectuate defendant's intent to testify before the Grand Jury, this fact standing alone was insufficient to establish ineffective assistance of counsel (see, People v. Wiggins, 89 N.Y.2d 872; People v. Madison, 259 A.D.2d 270, lv denied 93 N.Y.2d 1004; People v. Galleria, 264 A.D.2d 899, 900; [Sept. 23, 1999], slip opn p 2; People v. Brooks, 258 A.D.2d 527, lv denied 93 N.Y.2d 967; see also, People v. Mateo, 252 A.D.2d 821, lv denied 92 N.Y.2d 927; People v. Sturgis, 199 A.D.2d 549, lv denied 84 N.Y.2d 833). Moreover, based on the totality of the circumstances, we conclude that defendant received meaningful representation (see, People v. Murphy, 235 A.D.2d 933, 937, lv denied 90 N.Y.2d 896; People v. Barber, 231 A.D.2d 835).
A review of the record further reveals that Perkinson, the owner of the house, voluntarily consented to the search of the premises. Additionally, an officer testified that prior to entering the residence defendant also consented to the search. Accordingly, the search of defendant's apartment was not unlawful (see, People v. Corniel, 258 A.D.2d 812, lv denied 93 N.Y.2d 968;People v. Sloan, 242 A.D.2d 760, 761, lv denied 90 N.Y.2d 1014).
Defendant's remaining contentions have been considered and are found to be lacking in merit.
Mikoll, J.P., Mercure, Yesawich Jr. and Peters, JJ., concur.
ORDERED that the judgment is affirmed.