Opinion
April 2, 1998
Appeal from Supreme Court, New York County (Ira Beal, J.).
The court exercised sound discretion in denying defendant's motion for a mistrial with prejudice, after it was revealed for the first time during the arresting officer's direct testimony that the buy money that had been recovered from defendant and vouchered was no longer retrievable. Defendant failed to demonstrate either prosecutorial misconduct or any real prejudice to his defense warranting the drastic remedy sought (People v. Morrison, 235 A.D.2d 501, lv denied 89 N.Y.2d 1038; see also, People v. Haupt, 71 N.Y.2d 929, 931). It should be noted that the court gave an adverse inference charge favorable to defendant.
Defendant's claim that the prosecutor violated the court's Sandoval ruling is unpreserved for appellate review due to lack of specific objection (People v. Wilkens, 239 A.D.2d 105, lv denied 90 N.Y.2d 899), and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant opened the door to the questioning by his misleading testimony concerning his prior felony drug possession conviction (People v. Hunter, 235 A.D.2d 378, lv denied 89 N.Y.2d 1094). In any event, any error would have been harmless in light of the overwhelming evidence of defendant's guilt.
Concur — Sullivan, J.P., Rosenberger, Rubin and Tom, JJ.