People v. Molina

241 A.D.2d 329, 659 N.Y.S.2d 471, 1997 N.Y. App. Div. LEXIS 7035

Opinion

Judgment, Supreme Court, Bronx County (Alexander Hunter, Jr., J.), rendered July 20, 1994, convicting defendant, after a jury trial, of burglary in the second degree, petit larceny and criminal possession of stolen property in the fifth degree, and sentencing him, as a persistent violent felony offender, to concurrent prison terms of 15 years to life, 1 year and 1 year, respectively, unanimously affirmed.

Defendant’s challenge to the court’s ruling, after a Ventimiglia hearing (People v Ventimiglia, 52 NY2d 350) was waived and is unpreserved. Defendant consented to allowing the prosecutor to cross-examine him concerning his prior burglary conviction in the event defendant raised the defense of “mistake”, and his later statement “Note my exception”, at the conclusion of the court’s oral decision covering numerous other subjects, did not constitute a withdrawal of the prior consent (see, People v Albert, 85 NY2d 851, affg 206 AD2d 320). Moreover, in light of the overwhelming evidence of defendant’s guilt of burglary, any error in the court’s ruling was harmless.

While the trial court’s Allen charge was erroneous, the issue was not preserved for our review (People v Gasca, 216 AD2d 138,139, lv denied 86 NY2d 794) and, in light of the overwhelming evidence of defendant’s guilt (compare, People v Arce, 215 AD2d 277), reversal in the interest of justice is not warranted. Concur—Milonas, J. P., Ellerin, Nardelli, Williams and Mazzarelli, JJ.