Opinion
November 15, 1989
Appeal from the Supreme Court, Erie County, Kubiniec, J.
Present — Callahan, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminally negligence homicide for the stabbing death of his brother, defendant contends that the trial court committed reversible error in admitting evidence of his refusal to talk to the police immediately after his arrest. The People concede that such evidence was improperly admitted (see, Wainwright v Greenfield, 474 U.S. 284). However, in light of the testimony concerning defendant's subsequent statement to the police and testimony concerning his statement to the 911 operator that he had stabbed the victim, we find that such error was harmless beyond a reasonable doubt (see, People v Crimmins, 36 N.Y.2d 230; cf., People v Von Werne, 41 N.Y.2d 584, 588).
Although the court inappropriately referred to "evenly balanced" evidence in its instructions on the burden of proof (see, People v Jackson, 124 A.D.2d 975, 976, lv denied 69 N.Y.2d 746), the reference was isolated and was followed by a complete instruction on reasonable doubt (see, People v Thompson, 97 A.D.2d 554, 555). The charge, when read as a whole, conveyed the correct rule of law (see, People v Canty, 60 N.Y.2d 830, 832; People v Hartle, 151 A.D.2d 1003; People v Wynn, 108 A.D.2d 768, 769).
We have examined defendant's remaining contentions and find them lacking in merit.