Opinion
November 15, 1995
Appeal from the Onondaga County Court, McCarthy, J.
Present — Denman, P.J., Green, Fallon, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of attempted robbery in the first degree. We decline to modify the judgment by reducing the conviction to attempted robbery in the second degree (see, CPL 470.15 [a]; People v Mierzwa, 124 A.D.2d 1038, lv denied 69 N.Y.2d 714). Further, we conclude that the jury verdict rejecting the defense of insanity is not contrary to the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495).
Although the prosecutor improperly elicited testimony concerning defendant's post-arrest silence by asking a prosecution witness whether defendant had refused to sign a written statement (see, People v Hollis, 215 A.D.2d 777; People v Falk, 185 A.D.2d 630, lv denied 80 N.Y.2d 929), the trial court promptly delivered strong and unequivocal curative instructions that effectively eliminated any prejudice to defendant (see, People v Arce, 42 N.Y.2d 179, 187; People v Blair, 148 A.D.2d 767, 768, lv denied 74 N.Y.2d 661). There is no merit to defendant's remaining alleged instances of prosecutorial misconduct.
The court erred in directing defendant's psychiatric expert to prepare a written report of his findings and to disclose that report to the prosecution (see, People v Daly, 186 A.D.2d 217, lv denied 81 N.Y.2d 787; Matter of Mulvaney v Dubin, 80 A.D.2d 566, revd on other grounds 55 N.Y.2d 668). However, proof of defendant's guilt was overwhelming and the error was harmless (see, People v Crimmins, 36 N.Y.2d 230, 241-242; People v Daly, supra).
The cumulative effect of those errors did not deprive defendant of a fair trial. We have reviewed the remaining contentions of defendant and conclude that they are without merit.