Opinion
June 2, 1989
Appeal from the Supreme Court, Erie County, Flynn, J.
Present — Callahan, J.P., Denman, Boomer, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: The trial court erred in admitting the testimony of a police officer regarding a statement made by defendant that was not the subject of a written notice (CPL 710.30) and in permitting the prosecutor to comment upon it (see, People v. O'Doherty, 70 N.Y.2d 479). The error was harmless, however, because proof of defendant's guilt was overwhelming and there was no significant probability that absent the error, defendant would have been acquitted (see, People v Crimmins, 36 N.Y.2d 230, 242).
Defendant's claims of prosecutorial misconduct in making certain comments during summation and judicial error in instructing the jury as to justification were not preserved for our review (CPL 470.05). Moreover, those claims, as well as the contention that defendant was deprived of effective assistance of counsel, are without merit.