                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 3, 2016                   106550
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

RODNEY DAVIS, Also Known as
   ROCK,
                    Appellant.
________________________________


Calendar Date:   September 7, 2016

Before:   Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.

                             __________


     Brian M. Callahan, Schenectady, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                             __________


McCarthy, J.

      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.
After a jury trial, defendant was convicted of murder in the
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second degree, two counts of attempted murder in the second
degree, assault in the first degree, two counts of criminal
possession of a weapon in the second degree, attempted assault in
the first degree, assault in the second degree and criminal use
of a firearm in the first degree. County Court thereafter
sentenced defendant to an aggregate prison term of 50 years to
life in prison with five years of postrelease supervision.
Defendant appeals, and we affirm.

      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
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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 effect, particularly
given that it issued a limiting instruction to the jury as to the
purpose for which the gang evidence could be considered that was
consistent with the aforementioned ruling (see People v Collazo,
45 AD3d at 901; People v Faccio, 33 AD3d at 1042; People v
Williams, 28 AD3d 1005, 1008 [2006], lv denied 7 NY3d 819
[2006]). Defendant's related contention that the People
thereafter violated the court's Molineux ruling is unpreserved
for our review, as defendant did not specifically object on
Molineux grounds to any of the instances that he now claims were
improper (see People v Echavarria, 53 AD3d 859, 862-863 [2008],
lv denied 11 NY3d 832 [2008]; compare People v Buchanan, 95 AD3d
1433, 1436 n 3 [2012], lvs denied 22 NY3d 1039, 1043 [2013]).

      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.
                        -4-                  106550

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
