662 N.Y.S.2d 879 | N.Y. App. Div. | 1997
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of arson in the third degree (Penal Law § 150.10), defendant contends that County Court erred in admitting testimony concerning the “positive indications” of the accelerant-sniffing dog because the foundation proof was insufficient. Defendant failed to preserve that issue for our review (see, CPL 470.05 [2]). Were we to reach the merits, we would agree with defendant that the People failed to lay a proper foundation to establish the reliability of the dog (see, People v Price, 54 NY2d 557, 564) because neither fire investigator testified to the past performance or effectiveness of the dog as an accelerant-sniffing dog. The error in the admission of the investigators’ testimony, however, is harmless beyond a reasonable doubt. Proof of defendant’s guilt is overwhelming, and there is no significant probability that the error contributed to defendant’s conviction (see, People v Crimmins, 36 NY2d 230, 242).
We reject the contentions of defendant that his statement was obtained in violation of his right to counsel (see, People v Ramos, 40 NY2d 610) and was not sufficiently corroborated (see, CPL 60.50; People v Booden, 69 NY2d 185, 187). Finally, we conclude that the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Onondaga County Court, Brandt, J.—Arson, 3rd Degree.) Present—Pine, J. P., Lawton, Hayes, Callahan and Boehm, JJ.
