Opinion
KA 00-02765
February 7, 2003.
Appeal from a judgment of Erie County Court (DiTullio, J.), entered November 13, 1996, convicting defendant after a jury trial of, inter alia, robbery in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DAVID C. SCHOPP OF COUNSEL), For Defendant-appellant.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), For Plaintiff-respondent.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, KEHOE, 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 one count each of robbery in the first degree (Penal Law § 160.15) and criminal possession of a weapon in the third degree (§ 265.02 [1]) and two counts of criminal possession of stolen property in the fifth degree (§ 165.40). We agree with defendant's contention, and the People concede, that County Court erred in allowing a defense witness to be cross-examined about his knowledge of defendant's previous convictions. However, the court's curative instruction that the jury may not draw any inference from defendant's previous convictions alleviated any potential prejudice to defendant (cf. People v. Cruz, 261 A.D.2d 930, lv denied 93 N.Y.2d 1016). In any event, the error is harmless. The evidence of defendant's guilt is overwhelming and there is no significant probability that defendant would have been acquitted but for the error (see People v. Crimmins, 36 N.Y.2d 230, 241-242). Contrary to defendant's further contention, the court properly determined that the victim had an independent basis for his in-court identification of defendant (see People v. Tindale, 295 A.D.2d 987, 987-988, lv denied 98 N.Y.2d 714). The verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495), and the sentence is not unduly harsh or severe.