Opinion
2565
December 17, 2002.
Judgment, Supreme Court, New York County (James Yates, J.), rendered April 30, 2001, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second and third degrees, and sentencing him to concurrent terms of 8 to 25 years, 5 to 15 years and 2 to 7 years, respectively, unanimously affirmed.
Madeleine Guilmain, for Respondent.
Lyssa M. Sampson, for Defendant-appellant.
Before: TOM, J.P., BUCKLEY, FRIEDMAN, MARLOW, GONZALEZ, JJ.
The court properly exercised its discretion in denying defendant's mistrial motion made on the basis of an unsolicited reference to an uncharged crime, since any possible prejudice to defendant was obviated by the court's thorough and extensive curative instruction (see People v. Santiago, 52 N.Y.2d 865).
The court properly declined to deliver a missing witness charge (see People v. Gonzalez, 68 N.Y.2d 424). Defendant did not make a prima facie showing that the witness could provide material testimony, or that she was in the People's control. Moreover, the People clearly established that any testimony this witness could provide would be cumulative, and defendant did not dispute the People's showing that the witness was unavailable.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.