Opinion
April 5, 1985
Appeal from the Erie County Court, Wolfgang, J.
Present — Dillon, P.J., Callahan, Denman, Green and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: At defendant's retrial on a robbery charge arising out of a purse snatching, the People, as at defendant's prior trial, were unable to locate the complainant. Over defendant's objection, the trial court permitted the prosecutor to read into evidence the missing witness' preliminary hearing testimony pursuant to CPL 670.10 (1). The People set forth on the record their extensive efforts to locate the complainant, a transient, who had not been seen in several years. Upon our review of the record, we agree that the People had exercised "due diligence" in their attempts to locate the missing witness ( see, People v. Arroyo, 54 N.Y.2d 567, cert denied 456 U.S. 979). Inasmuch as defendant was represented by counsel who cross-examined the complainant at the preliminary hearing, it was not error to admit that testimony ( People v Arroyo, supra, p 574).
Although the prosecutor improperly made reference to the fact that the missing witness testified before the Grand Jury and paraphrased what she had told the police the night she was robbed, in view of the overwhelming evidence of defendant's guilt, we find the error to be harmless ( People v. Crimmins, 36 N.Y.2d 230). We have reviewed defendant's other claims of error on appeal and find them to be without merit.