People v. Funderburk

Judgment unanimously affirmed. Memorandum: We reject the contention that evidence concerning an uncharged robbery was improperly admitted. The robbery victim’s testimony constituted relevant background information to the charge of criminal possession of stolen property (see, People v McCray, 165 AD2d 765, 766, lv denied 77 NY2d 880; see also, People v Haddock, 203 AD2d 120, lv 991 denied 84 NY2d 826; People v Thompson, 202 AD2d 337, lv denied 83 NY2d 915; People v Martinez, 180 AD2d 403, 403-404, lv denied 79 NY2d 1004). The record supports the court’s determination that the showup identification of defendants by the police officer was not impermissibly suggestive (see, People v Reed, 197 AD2d 866, lv denied 82 NY2d 901). The court’s charge on reasonable doubt as a whole conveyed the proper standard of proof, and the characterization of the trial as a "search for the truth”, although not favored, does not require reversal (see, People v Carfagna, 212 AD2d 960). We reject the contention of defendant Shanklin that the evidence is insufficient to support his conviction of criminal mischief in the third degree (Penal Law § 145.05). Possession of the damaged property is not an element of that crime. Defendant Funderburk has failed to preserve for review the contention in his pro se supplemental brief that the court erred in failing to discharge one of the sworn jurors (see, People v Almodovar, 196 AD2d 718, lv denied 82 NY2d 890, cert denied — US —, 114 S Ct 2143), and we decline to review that contention as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). The court properly denied defendant Funderburk’s motion to dismiss the indictment on speedy trial grounds (see, CPL 30.20, 30.30). (Appeal from Judgment of Niagara County Court, Hannigan, J.—Criminal Possession Stolen Property, 4th Degree.) Present—Green, J. P., Pine, Callahan, Doerr and Boehm, JJ.