People v. Krische

— Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 29, 1974, convicting him of robbery in the first and second degrees, upon a jury verdict, and imposing sentence. Judgment affirmed. On this appeal, defendant contends, inter alia, that reversible error was committed during the course of his trial when (1) the trial court responded privately through a court officer, to a note sent to it by the jurors to the effect that they were unable, after a short period of deliberation, to reach a verdict, telling them to continue their deliberations and (2) during his summation, the prosecutor improperly implied that defendant had failed to testify in his own behalf, and called attention to the fact that defendant had failed to offer any evidence tending to refute the People’s case. Though proper practice required the trial court to convene the jury and to reply to the jurors’ note in the presence of defendant and his attorney, as well as the prosecutor, under the circumstances of this case no reversible error was committed by the trial court (see People v Venable, 46 AD2d 73, affd 37 NY2d 100). The claim that the prosecutor unfairly commented on defendant’s failure to contradict the People’s proof is not well founded. The prosecutor, in referring to this aspect of the case, called attention only to the fact that there was no contrary evidence, but did not put the burden upon defendant. In view of the overwhelming evidence of defendant’s guilt and the explicit charge to the jury, the error, if any, is deemed harmless (People v Crimmins, 36 NY2d 230; People v Rolchigo, 33 AD2d 1060, affd 28 NY2d 644). Rabin, Acting P. J., Hopkins, Martuscello, Christ and Shapiro, JJ., concur.