Opinion
November 12, 1999
Appeal from Judgment of Monroe County Court, Bristol, J. — Assault, 1st Degree.
PRESENT: DENMAN, P. J., GREEN, SCUDDER, CALLAHAN AND BALIO, JJ.
Judgment unanimously affirmed. Memorandum: Contrary to the contention of defendant, County Court properly denied his motion for a mistrial. Although the court erred in admitting evidence of prior bad acts without a prior ruling that the evidence was admissible (see, People v. Ventimiglia, 52 N.Y.2d 350, 362) and failed to give appropriate limiting instructions to the jury (see, People v. Koclya, 167 A.D.2d 938, 940), the errors are harmless (see, People v. Schrader, 251 A.D.2d 1032, 1033, lv denied 92 N.Y.2d 882; People v. Wieczorek, 177 A.D.2d 963, lv denied 79 N.Y.2d 866). We also reject the contention that defendant was denied a fair trial by prosecutorial misconduct during summation. The "isolated instances of prosecutorial misconduct did not cause `such substantial prejudice to the defendant that he has been denied due process of law'" (People v. Chislum, 244 A.D.2d 944, 945, lv denied 91 N.Y.2d 924, quoting People v. Mott, 94 A.D.2d 415, 419). The verdict is supported by legally sufficient evidence (see, People v. Williams, 84 N.Y.2d 925, 926). In addition, although a different finding would not have been unreasonable, we cannot conclude that the jury failed to give the evidence the weight it should be accorded (see, People v. Bleakley, 69 N.Y.2d 490, 495). Defendant's contention that the court erred in failing to charge the definition of "dangerous instrument" is not preserved for our review (see, CPL 470.05), and we decline to exercise our discretion to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [a]). Finally, because we are affirming the judgment of conviction, there is no basis to disturb the finding that defendant violated the terms of his probation by committing the underlying crimes.