People v. Watkins

• Decision Date: 22 December 1995
• Citation: 222 A.D.2d 1047,635 N.Y.S.2d 862
• Parties: The PEOPLE of the State of New York, Respondent, v. Jeffrey WATKINS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 862

635 N.Y.S.2d 862

222 A.D.2d 1047

The PEOPLE of the State of New York, Respondent, v. Jeffrey WATKINS, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Dec. 22, 1995.

Linda S. Reynolds, by Vincent Gugino, Buffalo, for Appellant.

Kevin M. Dillon, by Steven Meyer, Buffalo, for Respondent.

Before PINE, J.P., and FALLON, CALLAHAN, DAVIS and BOEHM, JJ.

MEMORANDUM:

Although the reference by a prosecution witness to defendant's other burglaries violated County Court's Ventimiglia ruling (see, People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59), defendant failed to object or to request curative instructions. Thus, the issue is not preserved for our review (see, CPL 470.05[2] ). Further, the reference was inadvertently made in relating defendant's statement regarding the burglary for which defendant was on trial. That statement was found by the court to have been knowingly, intelligently and voluntarily made. Additionally, any prejudicial effect of the witness's testimony was harmless in light of the overwhelming evidence of defendant's guilt (see, People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Archie, 167 A.D.2d 925, 561 N.Y.S.2d 1000, lv. denied 77 N.Y.2d 991, 571 N.Y.S.2d 917, 575 N.E.2d 403).

Although we do not condone the comment of the prosecutor in his opening statement regarding defendant's "problem with cocaine", the court gave adequate curative instructions to the jury that "alleviate[d] the prejudice to the defendant" (People v. Cruz, 72 A.D.2d 748, 749, 421 N.Y.S.2d 263; see, People v. Kelly, 38 A.D.2d 1004, 329 N.Y.S.2d 965). It is apparent that the jury carefully weighed the evidence and that its verdict, which acquitted defendant of two of the charges, was not affected by the prosecutor's isolated remark.

We reject the contention of defendant that his right to counsel was violated when the police questioned him without inquiring whether there was another charge pending against him. The police who questioned defendant were not aware of the other pending charge and their questions were solely on matters unrelated to that charge (see, People v. Bing, 76 N.Y.2d 331, 559 N.Y.S.2d 474, 558 N.E.2d 1011; People v. Blackwell, 175 A.D.2d 673, 573 N.Y.S.2d 936, lv. denied 78 N.Y.2d 1126, 578 N.Y.S.2d 883, 586 N.E.2d 66).

Defendant's conviction of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20) is supported by sufficient evidence, and the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; People v. Ford, 66 N.Y.2d 428, 437, 497 N.Y.S.2d 637, 488...