Opinion
11804 Ind. 4917/15
07-09-2020
The PEOPLE of the State of New York Respondent, v. Isa Abdul KARIM, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Carl S. Kaplan of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila O'Shea of counsel), for respondent.
Friedman, J.P., Renwick, Gische, Mazzarelli, Moulton, JJ.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered June 27, 2017, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him to a term of 2½ years, unanimously affirmed.
The court providently exercised its discretion in denying defendant's motion for a mistrial, the only remedy requested, because there were "less drastic means of alleviating whatever prejudice may have resulted" ( People v. Young, 48 N.Y.2d 995, 996, 425 N.Y.S.2d 546, 401 N.E.2d 904 [1980] ). Although the jury could have reasonably inferred from a prosecution witness's unsolicited passing remark that defendant had been arrested for an unrelated crime while awaiting trial on the present case, a curative instruction would have alleviated any prejudice (see People v. Santiago, 52 N.Y.2d 865, 866, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ). However, defense counsel did not accept the court's offer to give such an instruction (see e. g. People v. Melendez, 50 A.D.3d 485, 485, 855 N.Y.S.2d 146 [1st Dept. 2008], lv denied 10 N.Y.3d 961, 863 N.Y.S.2d 145, 893 N.E.2d 451 [2008] ), and defendant therefore should not be heard to complain on appeal about the lack of any curative actions by the court. In any event, any error in this regard was harmless in light of the overwhelming evidence of guilt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).