People v. Rivera

210 A.D.2d 178, 620 N.Y.S.2d 365, 1994 N.Y. App. Div. LEXIS 13215

Opinion

—Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered March 31, 1993, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 9 to 18 years, unanimously affirmed.

Defendant’s motion for a mistrial was properly denied. When the People elicited a statement made by defendant to the complainant, notwithstanding the People’s previous disclaimer, in their response to a discovery demand, of the existence of such statements, this turn of events did not require any type of remedy (see, CPL 240.70 [1]), because statements to a civilian witness are nondiscoverable (CPL 240.20 [1] [a]) and because defense strategy was totally unaffected by this situation. In any event, the court struck the statement and instructed the jury to disregard it, and any error in this regard would have been harmless because of the equivocal nature of the statement and the overwhelming evidence of guilt.

While portions of the People’s summation would have been better left unsaid, the summation generally remained within the broad bounds of permissible advocacy (People v Galloway, 54 NY2d 396, 399). In any event, any errors with respect to the summation were harmless beyond a reasonable doubt in view of the overwhelming evidence of guilt (People v Crimmins, 36 NY2d 230). Concur—Kupferman, J. P., Ross, Williams and Tom, JJ.