People v. Winston ( 1976 )

Nunez, J. (dissenting).

I dissent and vote to modify the judgment to the extent of reversing the conviction on the attempted grand larceny count of the indictment and otherwise to affirm. Defendant was arrested fleeing the scene of the crime. The victim positively identified the defendant as one of the individuals who attempted to rob him. As stated by the majority, "to reach a verdict of guilt, the jury had to grant credibility to the victim and deny it to the defendant.” The victim’s testimony having been believed, the evidence of defendant’s guilt is clear (People v Graham, 48 AD2d 646). While errors at the trial did occur, they did not prejudice defendant. Where proof of guilt, without reference to the error, is overwhelming, and there does not exist a significant probability, as contrasted with a rational possibility, that the jury would have acquitted the defendant absent the error, the error is not prejudicial (People v Crimmins, 36 NY2d 230, 242). Furthermore, the failure of defendant to object to the cross-examination and the introduction of the knife into evidence, or to take exception to the charge, requires an affirmance (People v Vidal, 26 NY2d 249; CPL 470.05). As to the attempted grand larceny count, it should be dismissed as a lesser included count in the verdict of guilty to attempted robbery (People v Pyles, 44 AD2d 784; CPL 300.40, subd 3, par [b]).

Stevens, P. J., and Markewich, J., concur with Lynch, J.; Capozzoli and Nunez, JJ., dissent in an opinion by Nunez, J.

Judgment, Supreme Court, New York County, rendered on May 24, 1973, reversed, on the law, in the interests of justice and in the exercise of discretion, and the case remanded for a new trial.