Opinion
July 12, 1996
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Denman, P.J., Pine, Callahan, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him after a jury trial of various crimes involving damages to or thefts from five mausoleums at the Mt. Hope Cemetery in Rochester, New York, defendant contends that reversal is required because Supreme Court permitted the People, as part of their direct case, to introduce evidence of prior uncharged crimes, without conducting a Ventimiglia hearing ( see, People v. Ventimiglia, 52 N.Y.2d 350).
We conclude that the court's failure to conduct a Ventimiglia hearing was error, but that the error is harmless in light of the overwhelming proof of defendant's guilt. There is no significant probability that defendant would have been acquitted but for that error ( see, People v. Thomas, 207 A.D.2d 1029, lv denied 84 N.Y.2d 1016; People v. Holloway, 185 A.D.2d 646, 647, lv denied 80 N.Y.2d 1027).
Defendant failed to preserve for our review his contentions that the court committed reversible error by failing either to read the list of prospective witnesses to the prospective jurors or to ask the prospective jurors whether any of the prospective witnesses were known to them; the court erred in excusing seven prospective jurors sua sponte; and reversal is required because of prosecutorial misconduct and cumulative error ( see, CPL 470.05). Also unpreserved for our review is defendant's contention that the court committed reversible error by requiring defendant to exercise his peremptory challenges before the People were required to do so ( see, People v. Mancuso, 22 N.Y.2d 679, 680, cert denied sub nom. Morganti v. New York, 393 U.S. 946, rearg denied 27 N.Y.2d 670; People v. Boylan, 190 A.D.2d 1043, lv dismissed 81 N.Y.2d 882, lv denied 81 N.Y.2d 967). Moreover, with respect to the latter contention, we are unable to determine from our review of the record whether defendant in fact exercised his peremptory challenges first. We decline to exercise our power to review the unpreserved contentions as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).