People v. Melvin

• Decision Date: 04 February 1994
• Citation: 201 A.D.2d 907,607 N.Y.S.2d 803
• Parties: PEOPLE of the State of New York, Respondent, v. Craig MELVIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 803

607 N.Y.S.2d 803

201 A.D.2d 907

PEOPLE of the State of New York, Respondent, v. Craig MELVIN, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 4, 1994.

Herbert Greenman, Buffalo, for appellant.

Kevin M. Dillon by Donna Millins, Buffalo, for respondent.

Before CALLAHAN, J.P., and GREEN, BALIO, LAWTON and BOEHM, JJ.

MEMORANDUM:

Supreme Court properly denied defendant's motion for a mistrial after a police witness, during cross-examination, inadvertently referred to defendant's parole status. The court examined each juror individually and determined that the jurors remained impartial in spite of the reference to defendant's parole status (see, People v. Young, 48 N.Y.2d 995, 996, 425 N.Y.S.2d 546, 401 N.E.2d 904; People v. Kirkland, 177 A.D.2d 946, 947, 577 N.Y.S.2d 987, lv. denied 79 N.Y.2d 859, 580 N.Y.S.2d 731, 588 N.E.2d 766; People v. Nagi, 153 A.D.2d 964, 965, 545 N.Y.S.2d 403). Defendant's challenge to the court's charge on circumstantial evidence was not preserved for our review (see, CPL 470.05[2]; People v. Freeman, 149 A.D.2d 727, 728, 540 N.Y.S.2d 333). In light of the overwhelming proof of defendant's guilt, any error in admitting testimony concerning the contents of a record not produced at trial was harmless (see, People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Defendant was provided meaningful representation (see, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Although defense counsel did not request a Wade hearing, defendant has failed "to demonstrate the absence of strategic or other legitimate explanations for counsel's failure" to request such hearing, especially given the many neighborhood witnesses familiar with defendant (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698; see also, People v. Simmons, 184 A.D.2d 1062, 586 N.Y.S.2d 913, lv. denied 82 N.Y.2d 726, 602 N.Y.S.2d 824, 622 N.E.2d 325; People v. Brown, 122 A.D.2d 546, 505 N.Y.S.2d 474, lv. denied 68 N.Y.2d 810, 507 N.Y.S.2d 1027, 499 N.E.2d 876). The evidence is sufficient to support defendant's conviction and the verdict is not contrary to the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Judgment unanimously affirmed.