People v. Barber

151 A.D.2d 975, 542 N.Y.S.2d 422, 1989 N.Y. App. Div. LEXIS 8285

Opinion

Judgment unanimously affirmed. Memorandum: The trial court erred in admitting the testimony of a police officer regarding a statement made by defendant that was not the subject of a written notice (CPL 710.30) and in permitting the prosecutor to comment upon it (see, People v O’Doherty, 70 NY2d 479). The error was harmless, however, because proof of defendant’s guilt was overwhelming and there was no significant probability that absent the error, defendant would have been acquitted (see, People v Crimmins, 36 NY2d 230, 242).

Defendant’s claims of prosecutorial misconduct in making certain comments during summation and judicial error in instructing the jury as to justification were not preserved for our review (CPL 470.05 [2]). Moreover, those claims, as well as the contention that defendant was deprived of effective assistance of counsel, are without merit. (Appeal from judgment of Supreme Court, Erie County, Flynn, J.—murder, second degree.) Present—Callahan, J. P., Denman, Boomer, Balio and Lawton, JJ.