People v. Nesmith , 608 N.Y.S.2d 920 ( 1993 )

Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1]) for attempting to forcibly steal property from a person while aided by another person actually present. We reject defendant’s argument that he was deprived of a fair trial because the prosecutor improperly elicited testimony about defendant’s membership in a street gang without obtaining an advance ruling from the court concerning the propriety of such testimony. Defendant admits that no objection was made at trial. Therefore, defendant’s claim of prosecutorial misconduct has not been preserved for review (see, CPL 470.05 [2]; People v Nuccie, 57 NY2d 818; People v Williams, 147 AD2d 920, lv denied 73 NY2d 1023). Furthermore, in light of the compelling proof of guilt, we conclude that the error was harmless because there was no significant probability that the jury would have acquitted defendant had that evidence not been introduced (see, People v Crimmins, 36 NY2d 230, 242). (Appeal from Judgment of Supreme Court, Monroe County, Doyle, J.—Attempted Robbery, 2nd Degree.) Present—Callahan, J. P., Green, Fallon and Davis, JJ.