Opinion
February 16, 2000
Appeal from Judgment of Erie County Court, D'Amico, J. — Assault, 2nd Degree.
PRESENT: GREEN, A. P. J., HAYES, PIGOTT, JR., AND SCUDDER, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05) and criminal possession of a weapon in the third degree (Penal Law § 265.02). Defendant contends that County Court erred in denying his motion for a mistrial. During cross-examination of a prosecution witness, a forensic scientist, defense counsel asked the witness why he did not perform a DNA test on blood found on the knife allegedly used by defendant to stab the victim. The witness testified that he was "sort of hoping that the suspect would plead and we wouldn't have to go to the expense". Defendant immediately moved for a mistrial because of the allegedly improper reference to a guilty plea.
Although any reference at the time of trial to a withdrawn plea is prohibited ( see, People v. Spitaleri, 9 N.Y.2d 168, 172; People v. Martinez, 164 A.D.2d 826, 827, lv denied 76 N.Y.2d 1022), the statement of the witness that he "hoped" defendant would plead guilty so that he would not have to test the blood on the knife is not the functional equivalent of informing the jury that defendant had pleaded guilty but that the plea had been withdrawn ( cf., People v. Martinez, supra). In any event, any error is harmless. Four witnesses testified that they saw defendant stab the victim, and there is no reasonable possibility that the testimony of the forensic scientist might have contributed to the verdict ( see, People v. Crimmins, 36 N.Y.2d 230, 237).