Opinion
December 30, 1999
Appeal from Judgment of Monroe County Court, Bristol, J. — Robbery, 2nd Degree.
Judgment unanimously affirmed.
PRESENT: LAWTON, J. P., HAYES, WISNER, HURLBUTT AND SCUDDER, JJ.
Memorandum:
Contrary to the contention of defendant, there is legally sufficient evidence in the record to support his conviction of robbery, assault and criminal mischief based upon accessorial criminal liability (Penal Law § 20.00). The testimony of the victims and other witnesses establishes that defendant assaulted one of the victims with larcenous intent. Additionally, the injury inflicted upon the second victim and the theft of the property from and damage to the victims' automobile were the "`culmination of a continuum of events in which [defendant] participated and continued to participate'" ( People v. Little, 186 A.D.2d 1072, lv denied 81 N.Y.2d 1075, quoting People v. Bosque, 78 A.D.2d 986, lv denied 52 N.Y.2d 901, cert denied 451 U.S. 992).
We agree with defendant that the People should have complied with People v. Ventimiglia ( 52 N.Y.2d 350, 361-362) and CPL 240.30 before offering testimony that defendant's initial words to the victims were "I just got out of jail. I'm on parole" and that defendant displayed a set of brass knuckles just before assaulting one of the victims. Defendant objected in both instances. Evidence of the brass knuckles was admissible on the issue of defendant's intent ( see, People v. Morales, 190 A.D.2d 1064, lv denied 81 N.Y.2d 974; see also, People v. Alvino, 71 N.Y.2d 233, 241-243; People v. Molineux, 168 N.Y. 264, 291-294). Although the prejudicial effect of defendant's statement concerning jail and parole outweighed its probative value ( see, People v. Ely, 68 N.Y.2d 520, 530-532; People v. Ventimiglia, supra, at 359-360), the error is harmless. The proof of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error ( see, People v. Sanchez, 261 A.D.2d 997 [decided June 18, 1999]; People v. Watkins, 229 A.D.2d 957, lv denied 89 N.Y.2d 931).
Defendant also contends that he was deprived of a fair trial by prosecutorial misconduct. With respect to the instances of alleged misconduct that are preserved for our review, we conclude that the prosecutor did not err in asking defendant on cross-examination whether testimony of prosecution witnesses that conflicted with defendant's testimony was "incorrect" ( see, People v. Weatherly, 246 A.D.2d 340, 341, lv denied 91 N.Y.2d 946; People v. Overlee, 236 A.D.2d 133, 138-139, lv denied 91 N.Y.2d 976; People v. Spencer, 226 A.D.2d 160, lv denied 88 N.Y.2d 995), nor did he err in eliciting on cross-examination that defendant had an interest in the outcome of the case. The contention that in cross-examining defendant the prosecutor improperly suggested that defendant fabricated his testimony after hearing the prosecution witnesses is not preserved for our review ( see, CPL 470.05; People v. Romanelli, 239 A.D.2d 940, 941, lv denied 90 N.Y.2d 910). Defendant also failed to preserve for our review his contention that the prosecutor on summation improperly expressed his personal belief that defendant was guilty. We decline to exercise our power to reach those contentions as a matter of discretion in the interest of justice ( see, CPL 470.15[a]).