People v. James

197 A.D.2d 429, 602 N.Y.S.2d 610, 1993 N.Y. App. Div. LEXIS 9780

Opinion

—Judgment, Supreme Court, Bronx County (Joseph Cerbone, J., at trial; Gerald Sheindlin, J., at sentence), rendered January 30, 1990, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 12 Vi to 25 years, unanimously affirmed.

While the prosecutor should not have adduced evidence of defendant’s postarrest silence even for the purpose of showing that defendant understood the Miranda warnings (see, People v De George, 73 NY2d 614), the misconduct was harmless in view of the overwhelming evidence of guilt, including defendant’s apprehension within minutes of the robbery in possession of the victim’s property. Any prejudice caused by the prosecutor’s comment during summation that the grand jury “saw enough evidence to indict the defendant for robbery in the first degree” was cured by the court’s instruction that an indictment is not evidence. We have considered defendant’s argument that the sentencing court abused its discretion and find it to be without merit. Concur—Murphy, P. J., Carro, Ross and Asch, JJ.