People v. Rimmen

8 A.D.3d 1088, 778 N.Y.S.2d 379, 2004 N.Y. App. Div. LEXIS 8138

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 2004
• Status: Published

Opinion

Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered November 9, 2000. The judgment convicted defendant, upon a jury verdict, of attempted burglary in the third degree and criminal mischief in the third degree.

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 after a jury trial of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20) and criminal mischief in the third degree (former § 145.05). Contrary to the contention of defendant, County Court properly denied his motion for a mistrial premised on an alleged violation of the court’s Ventimiglia ruling. Indeed, defendant elicited the disputed testimony during cross-examination of one of the People’s witnesses (see People v Hernandez, 286 AD2d 623 [2001], lv denied 97 NY2d 682 [2001]) and thereafter declined the court’s offer to issue a curative instruction (see People v Young, 48 NY2d 995, 996 [1980], rearg dismissed 60 NY2d 644 [1983]; Hernandez, 286 AD2d at 624). In any event, we conclude that any error is harmless inasmuch as there is “overwhelming evidence of defendant’s guilt and no significant probability that the jury would have acquitted defendant but for the error” (People v Thibodeau, 267 AD2d 952, 953 [1999], lv denied 95 NY2d 805 [2000]; see People v Frank, 302 AD2d 220, 221 [2003], lv denied 99 NY2d 654 [2003]). Present—Green, J.P., Hurlbutt, Kehoe, Gorski and Lawton, JJ.