PEOPLE v. ROSSBACK (1997)

Appeal from a judgment of the County Court of Schoharie County (Lamont, J.), rendered June 14, 1995, upon a verdict convicting defendant of the crimes of driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree.

Defendant was convicted after a jury trial of the crimes of driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree.   He was sentenced to concurrent prison terms of 1 1/3 to 4 years.   On appeal, defendant contends that he was denied a fair trial by the prosecutor's reference in his opening statement to the anticipated testimony of the Village Court Justice who arraigned defendant and the Justice's ensuing testimony which permitted the jury to infer that defendant was intoxicated during the arraignment.

 Based upon our review of the record, we find defendant's arguments to be unavailing.   While certain courts have found no error in the admission of the testimony of the arraigning justice at a defendant's trial for driving while intoxicated (see, People v. Ireland, 175 A.D.2d 139, 572 N.Y.S.2d 29;  People v. Jones, 158 A.D.2d 911, 551 N.Y.S.2d 78, lv. denied 75 N.Y.2d 967, 556 N.Y.S.2d 252, 555 N.E.2d 624), we need not decide this issue here since County Court granted defense counsel's objection and refused to allow the Justice who arraigned defendant to testify concerning his observations of defendant during the arraignment.   Contrary to defendant's claim, no negative inferences could be drawn from the Justice's testimony inasmuch as he was immediately excused as a witness out of the presence of the jury before he made any statements regarding defendant's demeanor.   Moreover, to the extent that the prosecutor made improper remarks regarding anticipated testimony of the Justice which was never received, we find this error harmless in light of the overwhelming evidence adduced at the trial of defendant's guilt (see, People v. Jones, supra, at 911, 551 N.Y.S.2d 78;  see also, People v. Stuart, 216 A.D.2d 682, 628 N.Y.S.2d 421, lv. denied 86 N.Y.2d 803, 632 N.Y.S.2d 516, 656 N.E.2d 615;  People v. Heidelmark, 214 A.D.2d 767, 624 N.Y.S.2d 656, lv. denied 85 N.Y.2d 973, 629 N.Y.S.2d 733, 653 N.E.2d 629).   Therefore, we find no reason to disturb the judgment of conviction.

ORDERED that the judgment is affirmed.

PETERS, Justice.

CARDONA, P.J., and MERCURE, WHITE and CARPINELLO, JJ., concur.