Opinion
December 22, 1992
Appeal from the Supreme Court, New York County (Carol Berkman, J.).
Convicted of murdering a prostitute, defendant argues that he was denied a fair trial because the jury was permitted to hear testimony concerning an earlier gun battle he had with the victim's pimp. The argument is unpreserved, and, in any event, without merit, since the probative value of the evidence on the issue of motive exceeded its potential for prejudice. That a hearing was not held in making this determination of probative value is not per se reversible error (see, People v Ventimiglia, 52 N.Y.2d 350, 362), and the evidence was not used to show defendant's propensity to commit the crime charged (cf., People v Correal, 160 A.D.2d 85). Furthermore, the trial court gave proper limiting instructions.
While the prosecutor's summation comments challenged on appeal would have been better left unsaid, a new trial is not warranted, since the trial court properly charged the jury on the standard of proof, and also because the overwhelming evidence of defendant's guilt rendered any prejudice harmless (People v Reyes, 119 A.D.2d 596, lv denied 68 N.Y.2d 772).
Concur — Carro, J.P., Wallach, Asch and Kassal, JJ.