People v. Barreras

115 A.D.2d 546, 496 N.Y.S.2d 68, 1985 N.Y. App. Div. LEXIS 54955

Opinion

Appeal by defendant from a judgment of the County Court, Westchester County (Nicolai, J.), rendered April 24, 1984, convicting him of burglary in the second degree, and petit larceny, after a nonjury trial, and imposing sentence.

Judgment affirmed.

At his first trial, defendant was convicted by a jury of two counts of a 17-count indictment. Upon defendant’s posttrial motion, alleging prosecutorial misconduct, the County Court dismissed the two counts of which he had been convicted. On appeal, we remitted the case to the County Court for a retrial on those two counts (People v Barreras, 92 AD2d 871). At the nonjury retrial, references were made by an Assistant District Attorney to charges of which the defendant had been acquitted at the first trial.

While it was error for the prosecutor to refer to the charges of which defendant had been acquitted (see, People v Santiago, 15 NY2d 640), the error was not prejudicial. From the outset of the trial the Trial Judge informed the attorneys that he was aware of the history of the case and of defendant’s prior acquittals. On this record, it does not appear that the Trial Judge was influenced or prejudiced by the reference to the charges in question.

We have considered defendant’s other contention and find it to be without merit. Mangano, J. P., Bracken, O’Connor and Weinstein, JJ., concur.