PEOPLE v. MOLINA (1997)

Judgment, Supreme Court, Bronx County (Alexander Hunter, Jr., J.), rendered July 20, 1994, convicting defendant, after a jury trial, of burglary in the second degree, petit larceny and criminal possession of stolen property in the fifth degree, and sentencing him, as a persistent violent felony offender, to concurrent prison terms of 15 years to life, 1 year and 1 year, respectively, unanimously affirmed.

 Defendant's challenge to the court's ruling, after a Ventimiglia hearing (People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59) was waived and is unpreserved.   Defendant consented to allowing the prosecutor to cross-examine him concerning his prior burglary conviction in the event defendant raised the defense of “mistake”, and his later statement “Note my exception”, at the conclusion of the court's oral decision covering numerous other subjects, did not constitute a withdrawal of the prior consent (see, People v. Albert, 85 N.Y.2d 851, 623 N.Y.S.2d 848, 647 N.E.2d 1356, affg 206 A.D.2d 320, 615 N.Y.S.2d 10).   Moreover, in light of the overwhelming evidence of defendant's guilt of burglary, any error in the court's ruling was harmless.

 While the trial court's Allen charge was erroneous, the issue was not preserved for our review (People v. Gasca, 216 A.D.2d 138, 139, 629 N.Y.S.2d 2, lv denied 86 N.Y.2d 794, 632 N.Y.S.2d 508, 656 N.E.2d 607) and, in light of the overwhelming evidence of defendant's guilt (compare, People v. Arce, 215 A.D.2d 277, 627 N.Y.S.2d 15), reversal in the interest of justice is not warranted.

MEMORANDUM DECISION.