People v. Banks

248 A.D.2d 183, 670 N.Y.S.2d 764, 1998 N.Y. App. Div. LEXIS 2383

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1998
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered December 6, 1995, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.

Defendant was not deprived of a fair trial by the court’s interjection of certain questions and comments. The court “acted within reasonable limits to clarify confusing questions and testimony and to elicit relevant facts” (People v Rivera, 201 AD2d 385, 386, Iv denied 83 NY2d 914).

The court properly refused defendant’s request for a specific charge on the mistake of fact defense. The court’s instructions adequately covered the defense theory (see, People v Williams, 81 NY2d 303, 316-317). There is no merit to defendant’s suggestion that the court’s charge permitted the jury to accept defendant’s theory of defense but convicted him nevertheless.

Defendant opened the door to testimony concerning silence by defendant and his codefendants at the time of the arrest. We further conclude that any error in the evidentiary rulings challenged on appeal was harmless in view of the overwhelming evidence of guilt.

We have considered defendant’s remaining contentions and find them to be without merit.

Concur — Sullivan, J. P., Milonas, Rubin and Tom, JJ.