Opinion
1032, 5532/10.
05-03-2016
The PEOPLE of the State of New York, Respondent, v. Michael LINTON, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), and Cahill Gordon & Reindel LLP, New York (Will A. Page of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), and Cahill Gordon & Reindel LLP, New York (Will A. Page of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), for respondent.
MAZZARELLI, J.P., FRIEDMAN, ANDRIAS, MOSKOWITZ, KAHN, JJ., concur. Judgment, Supreme Court, New York County (Patricia M. Nunez, J.), rendered October 6, 2011, as amended November 10, 2011, convicting defendant, after a jury trial, of criminal possession of stolen property in the fourth and fifth degrees, and sentencing him, as a second felony offender, to an aggregate term of two to four years, unanimously affirmed.
The court properly exercised its discretion in denying defendant's mistrial motion, made after a police witness revealed uncharged crime evidence that the court had precluded. The court sustained defense counsel's objection, struck the response, recalled the witness to give clarifying testimony favorable to defendant and twice provided curative instructions which the jury is presumed to have followed (see People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710 [1983] ). These curative actions were sufficient to prevent any possible prejudice (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ).
The court also properly exercised its discretion in permitting a police witness to provide background evidence, based on his experience, concerning “lush workers” and police lush worker operations (see People v. Bright, 111 A.D.3d 575, 975 N.Y.S.2d 660 [1st Dept.2013], lv. denied 22 N.Y.3d 1137, 983 N.Y.S.2d 495, 6 N.E.3d 614 [2014] ). This testimony tended to explain the actions of both defendant and the police surveillance team throughout the course of events, and it was not unduly prejudicial.