People v. Romero

54 A.D.3d 781, 864 N.Y.S.2d 63

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 9, 2008
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered March 2, 2006, convicting him of unauthorized use of a vehicle in the second degree and operating a motor vehicle while under the influence of alcohol, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The prosecutor erred in questioning a police witness about the defendant’s silence upon receiving his Miranda warnings (see Miranda v Arizona, 384 US 436 [1966]), and in remarking about that silence upon summation (see People v Conyers, 52 NY2d 454, 459 [1981]; People v Savage, 50 NY2d 673, 677 [1980]; People v Spinelli, 214 AD2d 135, 139-140 [1995]). However, the court sustained defense counsel’s objections to the questioning. Moreover, the evidence of the defendant’s guilt, without reference to the questioning and remarks, was overwhelming, and there is no reasonable possibility that the error might have contributed to the defendant’s conviction. Thus, the error was harmless (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Wong, 201 AD2d 688, 688-689 [1994]).

The prosecutor’s improper comment in summation, accusing the defendant of an uncharged crime, was also harmless error (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Castellano, 284 AD2d 406, 407 [2001]). Skelos, J.P., Covello, Leventhal and Belen, JJ., concur.