Opinion
February 2, 1996
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Green, J.P., Pine, Fallon, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Supreme Court did not abuse its discretion in denying defendant's motion for a mistrial based upon the introduction of evidence that defendant had previously attended a "drinking driver" program. When it became apparent that the People could not provide an adequate foundation for that evidence, the court granted defendant's request to strike the evidence and instructed the jury to disregard completely any reference to that program. The court's prompt curative instruction alleviated any possible prejudice to defendant (see, People v. Johnson, 219 A.D.2d 809; People v Brooks, 213 A.D.2d 999, lv denied 85 N.Y.2d 970) and the "drastic remedy" of a mistrial was not warranted (People v. Rice, 75 N.Y.2d 929, 933; see, People v. Johnson, supra; People v. Rotundo, 194 A.D.2d 943, 945, lv denied 82 N.Y.2d 726).
The motion to suppress defendant's statement to the police was properly denied. The record supports the court's determination that defendant clearly understood her Miranda rights and implicitly waived them when she willingly answered the officer's questions after receiving the Miranda warnings (see, People v Sirno, 76 N.Y.2d 967, 968). We reject defendant's contention that the People's proof at trial varied from the allegations of the indictment (see, People v. Grega, 72 N.Y.2d 489). The People met their burden of showing the authenticity of the blood sample used to determine defendant's blood alcohol level (see, People v Arthur, 99 A.D.2d 595; see also, People v. Julian, 41 N.Y.2d 340, 343). The sentence imposed is not unduly harsh or severe.