People v. Davis

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered December 12, 2013, upon a verdict convicting defendant of the crimes of murder in the second degree, attempted murder in the second degree (two counts), assault in the first degree, criminal possession of a weapon in the second degree (two counts), attempted assault in the first degree, assault in the second degree and criminal use of a firearm in the first degree.

Defendant was charged with a variety of crimes based on accusations that included that he had shot three victims outside of a bar, killing one of the victims and wounding the other two.

Defendant contends that the People’s CPL 710.30 notice of their intention to introduce statements made by defendant to a public servant was inadequate because it failed to provide a sufficient description of statements alleged to be made by defendant during a police interview, thus requiring the preclusion of those statements at trial. However, defendant specifically moved, pretrial, to suppress oral and written statements made during the aforementioned interview. The absence of sufficient notice does not warrant preclusion when the defendant has nevertheless made an unsuccessful suppression motion directed at the statements that were the subject of the inadequate notice (see CPL 710.30 [3]; People v O’Doherty, 70 NY2d 479 , 483 [1987]; People v Banks, 77 AD2d 742 , 743 [1980]). Moreover, at the time of the Huntley hearing, defendant acknowledged that he had received the notes describing defendant’s statements at the aforementioned interview and he did not seek to adjourn the hearing. Accordingly, defendant’s contention that he was unable to prepare for the Huntley hearing due to the late receipt of discovery materials is unpreserved for our review (see CPL 470.05 [2]).

Next, County Court did not err in its Molineux ruling. The People sought to introduce evidence of defendant’s gang affiliation to explain his motive for shooting the victims and as background for why he would confess to a particular witness— another member of the same gang—that he had shot the three victims. Over defendant’s objection, County Court ruled that the People could present evidence of defendant’s gang affiliation for the limited purpose of explaining why defendant would confide in a witness that he had shot three people. County Court did not err in admitting evidence of defendant’s gang affiliation for that purpose, because it provided necessary background information (see People v Collazo, 45 AD3d 899 , 901 [2007], lv denied 9 NY3d 1032 [2008]; People v Faccio, 33 AD3d 1041 , 1042 [2006], lv denied 8 NY3d 845 [2007]). Further, the court did not abuse its discretion in finding that the probative value of the evidence outweighed its undue prejudicial ef-

Defendant’s remaining contention, that County Court erred when it granted a protective order in relation to discovery, is also unpreserved. County Court granted the People’s oral motion for a protective order, for the purpose of witness safety, that prohibited defense counsel from turning over possession of discovery materials to defendant without court approval. Accordingly, defendant was only permitted supervised access to discovery materials absent court approval. Defendant neither opposed the People’s motion nor objected to the court’s order at any point thereafter, and therefore defendant’s challenge to that protective order is unpreserved for our review (see People v Johnson, 91 AD3d 1194 , 1197 [2012], lv denied 18 NY3d 995 [2012]). Finally, as to each of defendant’s unpreserved contentions, we find corrective action in the interest of justice to be unwarranted.

Peters, P.J., Garry, Rose and Mulvey, JJ., concur.

Ordered that the judgment is affirmed.