Opinion
December 22, 1994
Appeal from the Supreme Court, Bronx County (Joseph Cerbone, J.).
The court's inadvertent submission of the attempted murder count, which had been dismissed prior to trial, was rendered harmless by defendant's acquittal on that count. Inadvertent submission of a count not contained in the indictment requires no further remedy than the one supplied by the jury's verdict (see, People v Scott, 93 A.D.2d 754). The mere presence of the attempted murder count was not inherently prejudicial (People v Brown, 83 N.Y.2d 791, 794), nor did it have any discernible effect on defense strategy (People v Miller, 70 N.Y.2d 903, 907), which was based on self-defense and denial of intent to either kill or injure the complainant. For the same reasons, defense counsel's failure to ascertain the disposition of his pretrial motion did not deprive defendant of the effective assistance of counsel.
The People's disclosure, during jury selection, of their intent to cross-examine defendant about newly discovered prior bad acts that had not resulted in arrests, was timely under CPL 240.43 because it was made as soon as practicable (People v Brown, 202 A.D.2d 266, lv denied 83 N.Y.2d 964). In any event, we find any error in the timing of the People's disclosure to be inadequately preserved and harmless.
The court's ultimate Sandoval ruling was not an abuse of discretion (People v Pavao, 59 N.Y.2d 282, 291-292; People v Handy, 123 A.D.2d 398, 399). There is no hard and fast rule that a defendant charged with an assault may not be questioned about another assault (People v Pavao, supra, at 291). In any event, the questions merely elicited defendant's denials of the bad acts, followed by prompt and appropriate instructions by the court that only answers, not questions, are evidence.
Concur — Sullivan, J.P., Wallach, Kupferman, Asch and Tom, JJ.