Opinion
Decided June 5, 2001.
Appeal, by permission of a justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that court, entered March 30, 2000, which affirmed a judgment of the Supreme Court (Leslie Crocker Snyder, J.), rendered in New York County upon a verdict convicting defendant of conspiracy in the first degree.
During defendant's trial for his alleged participation in a large-scale drug operation, defense counsel elicited from a police detective that defendant was not seen at two key drug locations during surveillance operations. Arguing that the defense counsel had opened the door, the People sought to introduce proof that defendant was incarcerated during the surveillance. The judge directed the parties to prepare a stipulation saying, in effect, that defendant was not in the area at the time of the surveillance and, in particular, from 1992 to the date of the trial about two and a half years later. Defense counsel objected and moved for a mistrial. The judge offered to clarify that the prosecutor's statement was not a stipulation, but defense counsel refused that offer. The court denied defense counsel's motion for a mistrial, and defendant was convicted of conspiracy.
The Appellate Division concluded that since defense counsel's questions focused on the detectives' failure to observe defendant, these questions tended to mislead the jury, and that while the court initially directed the parties to agree upon a stipulation which would not mention defendant's jail status, the prosecutor was correct in arguing that anything short of informing the jury that defendant was incarcerated would leave the impression that defendant had voluntarily withdrawn from the conspiracy.
Evan H. Krinick, for appellant.
Vincent Rivellese, for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant appeals his conviction of conspiracy in the first degree arising from his alleged participation in a large-scale drug operation. On appeal he argues that the trial court erred in denying his motion for a mistrial after a "stipulation" was read to the jury stating that defendant was incarcerated from February 19, 1992 to the date of trial about two and a half years later. On this record we conclude that the trial court did not abuse its discretion as a matter of law by denying the motion for a mistrial (see, People v. Robinson, 93 N.Y.2d 986, 987-988). Defendant's arguments with respect to the denial of his motion for severance and the Allen charge (Allen v. United States, 164 U.S. 492) are without merit. His remaining arguments are unpreserved.
Order affirmed, in a memorandum. Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.