Opinion
October 14, 1986
Appeal from the Supreme Court, Kings County (Cohen, J.).
Justice Mangano has been substituted for the late Justice Gibbons (see, 22 NYCRR 670.2 [c]).
Ordered that the judgment is affirmed.
When reviewing a conviction this court must view the evidence in the light most favorable to the People (see, People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932; People v Bigelow, 106 A.D.2d 448). Additionally, resolutions of questions relating to the credibility of witnesses is properly a function of the jury and should not be overturned lightly on appeal (see, People v Gruttola, 43 N.Y.2d 116; People v Sutton, 108 A.D.2d 942). When viewing this case in the light most favorable to the People it is clear that the evidence adduced at trial supported the guilty verdict.
Moreover, although as a general rule, evidence of a pretrial photographic identification of a defendant is not permitted (see, People v Griffin, 29 N.Y.2d 91; People v Caserta, 19 N.Y.2d 18), exceptions to the general rule may be made and evidence of pretrial photographic identifications may be admitted "`to answer an attack of "recent fabrication" or because the defendant opened the door to this line of questioning on cross-examination'" (see, People v Barnes, 93 A.D.2d 864, 865, quoting from People v Carter, 52 A.D.2d 829, 830). In the case at bar, the defendant, on cross-examination, sought to create the false impression that a prosecution witness was unable to identify him from photographs. Thus, the defendant opened the door to this area of inquiry and the court properly allowed "the prosecutor, on redirect examination, to elicit additional testimony regarding the [witness's] ultimate selection of the defendant from a different photo array" (see, People v Langert, 105 A.D.2d 845, 846; see also, People v Lyde, 104 A.D.2d 957).
Finally, it is well settled that the decision to grant or deny a motion for a mistrial is within the discretion of the trial court and, absent a clear abuse of that discretion that decision will not be disturbed (see, People v Ortiz, 54 N.Y.2d 288; People v Michael, 48 N.Y.2d 1). If there are less drastic means of alleviating potential prejudice, a mistrial is unwarranted (see, People v Young, 48 N.Y.2d 995). In the instant case, any potential prejudice stemming from certain witnesses' unresponsive answers was dissipated by the court's prompt and concise curative instructions to the jury. Accordingly, the defendant's motion for a mistrial was properly denied (see, People v Berg, 59 N.Y.2d 294; People v Agront, 104 A.D.2d 821).
We have examined the defendant's remaining contentions and find them to be without merit. Mangano, J.P., Thompson, Eiber and Spatt, JJ., concur.