Opinion
September 29, 1995
Appeal from the Supreme Court, Erie County, Rossetti, J.
Present — Denman, P.J., Fallon, Wesley, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Supreme Court erred in refusing to give a missing witness charge. In light of the overwhelming evidence against defendant, however, such error is harmless; there is no significant probability that the jury would have otherwise acquitted defendant (see, People v Fields, 76 N.Y.2d 761; People v Crimmins, 36 N.Y.2d 230, 242).
The contention of defendant that he was entitled to a mistrial due to the prosecutor's reference to defendant's parole violation hearing is without merit. Although the prosecutor's single reference to defendant's parole hearing was improper, reference to the hearing had initially been brought out in defendant's cross-examination of the victim. Further, the court sustained defendant's objection, and gave prompt curative instructions to the jury, thereby ameliorating any possible prejudice to defendant (see, People v Arce, 42 N.Y.2d 179). Under the circumstances, the court did not abuse its discretion in denying defendant's motion for the "drastic remedy" of a mistrial (People v Rice, 75 N.Y.2d 929, 933; see, People v Santiago, 52 N.Y.2d 865).
We reject the contention of defendant that the court erred in refusing to charge attempted robbery in the third degree as a lesser included offense of attempted robbery in the first degree. There is no reasonable view of the evidence that would support a finding that defendant attempted to steal property forcibly but did not use or threaten the immediate use of a dangerous instrument (see, Penal Law § 110.00, 160.05 Penal, 160.15 Penal [3]; People v Glover, 57 N.Y.2d 61; People v Rice, 81 A.D.2d 515).
The verdict finding defendant guilty of attempted robbery in the first degree is supported by legally sufficient evidence (see, People v Bleakley, 69 N.Y.2d 490, 495). Defendant's remaining contention is not preserved for our review (see, People v Satloff, 56 N.Y.2d 745, rearg denied 57 N.Y.2d 674; People v Stahl, 53 N.Y.2d 1048), and we decline to address it as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).