Opinion
March 16, 1990
Appeal from the Orleans County Court, Miles, J.
Present — Doerr, J.P., Boomer, Green, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The court did not err in refusing to instruct the jury to apply the more rigorous circumstantial evidence standard. The People's case rested on both direct and circumstantial evidence (see, People v Barnes, 50 N.Y.2d 375). Defendant's statement to Neil Bischoff that "I did it, I did it, I did it" while indicating a stabbing gesture and raising his right fist to his chest could have reasonably been interpreted by the fact finder as a "relevant admission of guilt" (People v Rumble, 45 N.Y.2d 879, 880; see, People v Shaw, 128 A.D.2d 817, 818; cf., People v Burke, 62 N.Y.2d 860; People v Sanchez, 61 N.Y.2d 1022; People v Williams, 121 A.D.2d 145). Consequently, we conclude that defendant's admissions constituted direct evidence.
While the court's comments during the voir dire concerning defendant's right to remain silent and the prosecutor's statements on summation regarding defendant's failure to testify were improper (see, People v Koberstein, 66 N.Y.2d 989; People v Jackson, 127 A.D.2d 696, 697, lv denied 69 N.Y.2d 951), we deem the errors harmless in light of the overwhelming proof of defendant's guilt (see, People v Crimmins, 36 N.Y.2d 230). We reject defendant's contention that he was deprived of a fair trial because of alleged improper and unfounded comments by the court and the prosecutor during defense counsel's summation. Similarly, defendant was not deprived of a fair trial because of claimed prosecutorial misconduct during the People's summation (People v Broadus, 129 A.D.2d 997, lv denied 70 N.Y.2d 643).
The evidence, viewed in the light most favorable to the People (see, People v Ford, 66 N.Y.2d 428), was legally sufficient to support defendant's convictions for murder in the second degree (Penal Law § 125.25) and criminal possession of a weapon in the third degree (Penal Law § 265.02; see, People v Bleakley, 69 N.Y.2d 490, 495).
The trial court did not abuse its discretion in granting defendant a continuance rather than precluding the prosecutor from introducing certain laboratory test results because of his failure to comply with defense discovery requests until the fifth day of trial (see, CPL 240.70; People v Rosario, 124 A.D.2d 683, lv denied 69 N.Y.2d 833). "Where, as here, any potential prejudice arising from noncompliance with the continuing duty of disclosure under CPL 240.20 could be cured by the granting of a continuance, the drastic remedy of preclusion [is] not warranted" (People v Eleby, 137 A.D.2d 708, 709, lv denied 71 N.Y.2d 1026).
We have reviewed defendant's remaining contentions and we find them to be either unpreserved (see, CPL 470.05) or, where preserved, lacking in merit.