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People v. Diggs

Appellate Division of the Supreme Court of New York, Second Department
Jan 31, 2006
25 A.D.3d 807 (N.Y. App. Div. 2006)

Opinion

2003-10095.

January 31, 2006.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered October 29, 2003, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.

Lynn W.L. Fahey, New York, N.Y. (Alexis A. Ascher of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel; Peter M. Doyle, Jr., on the brief), for respondent.

Before: Florio, J.P., Krausman, Lifson and Lunn, JJ., concur.


Ordered that the judgment is affirmed.

After the prosecutor elicited an in-court identification of the defendant from an eyewitness who had testified that he did not see the suspect's face, the defendant moved for a mistrial or, alternatively, to strike the entire testimony of the witness. The trial court denied the motion except to the extent of striking the question and answer.

The decision whether to declare a mistrial necessarily rests in the broad discretion of the trial court, which is best situated to consider all the circumstances, and its determination is entitled to great weight on appeal ( see People v. Lagerence, 197 AD2d 593; see also Matter of Plummer v. Rothwax, 63 NY2d 243, 250). The trial court providently exercised its discretion in denying the motion except to the extent of striking the question and answer ( see People v. Lagerence, supra; see also People v. Santiago, 52 NY2d 865, 866). Moreover, the defendant did not request any additional curative action, and therefore his contention that the trial court should have given a curative instruction is unpreserved for appellate review ( see People v. Santiago, supra).


Summaries of

People v. Diggs

Appellate Division of the Supreme Court of New York, Second Department
Jan 31, 2006
25 A.D.3d 807 (N.Y. App. Div. 2006)
Case details for

People v. Diggs

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BERNARD DIGGS…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 31, 2006

Citations

25 A.D.3d 807 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 665
807 N.Y.S.2d 579

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