People v. Boyd

27 A.D.3d 1124, 812 N.Y.S.2d 206

Opinion

Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered August 11, 2004. The judgment convicted defendant, upon a jury verdict, of criminal trespass in the first degree, assault in the second degree, criminal possession of a weapon in the third degree and reckless driving.

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, upon a jury verdict, of criminal trespass in the first degree (Penal Law § 140.17 [2], assault in the second degree (§ 120.05 [2]), criminal possession of a weapon in the third degree (§ 265.02 [4]) and reckless driving (Vehicle and Traffic Law § 1212). We agree with defendant that County Court erred in admitting evidence that dynamite was found in the trunk of defendant’s vehicle. The potential for prejudice with respect to that evidence greatly outweighed any probative value (see generally People v Alvino, 71 NY2d 233, 241-242 [1987]). We nevertheless conclude, however, that the error in the admission of the evidence is harmless (see People v Crimmins, 36 NY2d 230, 241-242 [1975]). Defendant further contends that the court erred in denying his request at the commencement of the trial to withdraw his prior waiver of the right to a Huntley hearing. We reject that contention (see People v Ford, 249 AD2d 978 [1998], lv denied 92 NY2d 924 [1998]). Finally, the sentence is not unduly harsh or severe. Present—Hurlbutt, J.P., Scudder, Kehoe, Green and Hayes, JJ.