Opinion
KA 01-00228.
Decided June 14, 2004.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered November 9, 2000. The judgment convicted defendant, upon a jury verdict, of attempted burglary in the third degree and criminal mischief in the third degree.
MICHAEL J. VIOLANTE, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20) and criminal mischief in the third degree (former § 145.05). Contrary to the contention of defendant, County Court properly denied his motion for a mistrial premised on an alleged violation of the court's Ventimiglia ruling. Indeed, defendant elicited the disputed testimony during cross-examination of one of the People's witnesses ( see People v. Hernandez, 286 A.D.2d 623, lv denied 97 N.Y.2d 682) and thereafter declined the court's offer to issue a curative instruction ( see People v. Young, 48 N.Y.2d 995, 996, rearg dismissed 60 N.Y.2d 644; Hernandez, 286 A.D.2d at 624). In any event, we conclude that any error is harmless inasmuch as there is "overwhelming evidence of defendant's guilt and no significant probability that the jury would have acquitted defendant but for the error" ( People v. Thibodeau, 267 A.D.2d 952, 953, lv denied 95 N.Y.2d 805; see People v. Frank, 302 A.D.2d 220, 221, lv denied 99 N.Y.2d 654).