Opinion
October 12, 1993
Appeal from the Supreme Court, Suffolk County (Stark, J.).
Ordered that the judgment is affirmed.
The defendant and his codefendant were jointly charged and tried for the October 5, 1979, armed robbery of a McDonald's restaurant in Medford, New York. The People did not serve a notice of intention to offer identification testimony against either defendant. However, during cross-examination of a restaurant employee by the defendant's attorney, the employee stated that she had seen the codefendant at the time of the robbery. The attorneys for both defendants moved for a mistrial. The motion was granted with respect to the codefendant but denied with respect to the defendant. The defendant contends that the trial court erred in denying his application for a mistrial. We disagree.
The decision to declare a mistrial necessarily rests in the sound discretion of the trial court, as best situated to consider all the circumstances and determine whether a mistrial is actually required (see, Matter of Plummer v. Rothwax, 63 N.Y.2d 243, 250). The trial court's determination is entitled to great weight on appeal (see, People v. Baptiste, 72 N.Y.2d 356). A mistrial is not required unless there has been bad faith or undue prejudice to the defendant (see, People v. Melendez, 178 A.D.2d 366). Here, we find no indication of bad faith on the part of the prosecution. The identification of the codefendant was made during defense counsel's own cross-examination and the prosecutor appeared as genuinely surprised as defense counsel by the testimony. Moreover, the record does not support the defendant's claim of undue prejudice (see, People v Jean-Pierre, 169 A.D.2d 932, 933).
We have reviewed the defendant's remaining contentions and find them to be without merit. Rosenblatt, J.P., Lawrence, O'Brien and Ritter, JJ., concur.