People v Santiago (John)

[*1] People v Santiago (John) 2004 NY Slip Op 51672(U) Decided on December 21, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 21, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2003-8 K CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

JOHN SANTIAGO, Appellant.

Appeal by defendant from a judgment of the Criminal Court, Kings County (T. Farber, J.), rendered November 26, 2002, convicting him, after a jury trial, of petit larceny (Penal Law § 155.25) and criminal possession of stolen property (Penal Law § 165.40), and imposing sentence.

Judgment of conviction unanimously affirmed.

The record on appeal established that the trial judge sua sponte annotated the transcribed jury charge to conform it to the charge actually delivered to the jury. Inasmuch as the court indicated that the challenged portion of the printed trial transcript was erroneous and that, as annotated, the transcript was correct, the handwritten annotations made by the court comprise part of the settled transcript (see CCA 1704). The charge contained in the handwritten annotations was proper with respect to the weight to be given to defendant's decision not to testify, and defendant's contentions relating to the charge as originally erroneously transcribed are of no consequence (see People v Williams, 2 AD3d 546 [2003]; People v Scott, 197 AD2d 646 [1993]). We further note that defendant took no exception to the charge when given and, therefore, failed to preserve any issue in this regard for review (People v Autry, 75 NY2d 836 [1990]).

While the prosecutor should have obtained a ruling from the trial court regarding the admissibility of the testimony as to why the defendant committed the crime before this evidence was introduced into the case (see People v Ventimiglia, 52 NY2d 350 [1981]), the error was harmless as the evidence was admissible and because the evidence of defendant's guilt was overwhelming (see People v Crimmins, 36 NY2d 230 [1975]; People v Gauze, 3 AD3d 538 [*2][2004]; People v Williams, 197 AD2d 722 [1993]).
Decision Date: December 21, 2004