People v. Burwell

Appellate Division of the Supreme Court of New York

People v. Burwell

63 A.D.2d 685, 404 N.Y.S.2d 662, 1978 N.Y. App. Div. LEXIS 11575

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 8, 1978

StatusPublished

Cited by1 cases

This text of 63 A.D.2d 685 (People v. Burwell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Burwell, 63 A.D.2d 685, 404 N.Y.S.2d 662, 1978 N.Y. App. Div. LEXIS 11575 (N.Y. Ct. App. 1978).

Pincite

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 4, 1977, convicting him of resisting arrest, upon a jury verdict, and imposing sentence. Judgment affirmed. During the trial, the arresting officer testified that when he asked the defendant and his accomplice what they were doing, the accomplice replied: "None of your * * * business.” The defendant then stated: "What are you going to do, shoot me?” Defendant contends on this appeal, inter alia, that it was error for the trial court to have denied his motion for a mistrial because the People never served him with a notice of intent to use such a statement (see CPL 710.30, subd 1). The trial court properly held that the proffered testimony was inadmissible (see People v Briggs, 38 NY2d 319). However, in view of the court’s curative instruction, which was immediately given to the jury, and the weight of admissible evidence indicating a lawful arrest, the error must be considered to have been harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230). Additionally, while the jury charge on the crime of resisting arrest was not perfect, when read in its entirety we find that the correct rule of law was given. Damiani, J. P., Titone, Rabin and Gulotta, JJ., concur.

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Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 4, 1977, convicting him of resisting arrest, upon a jury verdict, and imposing sentence. Judgment affirmed. During the trial, the arresting officer testified that when he asked the defendant and his accomplice what they were doing, the accomplice replied: "None of your * * * business.” The defendant then stated: "What are you going to do, shoot me?” Defendant contends on this appeal, inter alia, that it was error for the trial court to have denied his motion for a mistrial because the People never served him with a notice of intent to use such a statement (see CPL 710.30, subd 1). The trial court properly held that the proffered testimony was inadmissible (see People v Briggs, 38 NY2d 319). However, in view of the court’s curative instruction, which was immediately given to the jury, and the weight of admissible evidence indicating a lawful arrest, the error must be considered to have been harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230). Additionally, while the jury charge on the crime of resisting arrest was not perfect, when read in its entirety we find that the correct rule of law was given. Damiani, J. P., Titone, Rabin and Gulotta, JJ., concur.

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Bluebook (online)

63 A.D.2d 685, 404 N.Y.S.2d 662, 1978 N.Y. App. Div. LEXIS 11575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-burwell-nyappdiv-1978.

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