Opinion
11-16-2016
The PEOPLE, etc., respondent, v. Vincent MACALUSO, Jr., appellant.
Vincent Macaluso, Jr., Fallsburg, NY, appellant pro se. Thomas J. Spota, District Attorney, Riverhead, NY (Edward A. Bannan of counsel), for respondent.
Vincent Macaluso, Jr., Fallsburg, NY, appellant pro se.Thomas J. Spota, District Attorney, Riverhead, NY (Edward A. Bannan of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Toomey, J.), rendered July 10, 2013, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The County Court properly denied that branch of the defendant's motion which was to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial (see CPL 30.30 ; People v. Waldron, 6 N.Y.3d 463, 467, 814 N.Y.S.2d 70, 847 N.E.2d 367 ; People v. Garcia, 33 A.D.3d 1050, 1051, 822 N.Y.S.2d 322 ; People v. Yampierre, 300 A.D.2d 419, 750 N.Y.S.2d 787 ; cf. People v. Dickinson, 18 N.Y.3d 835, 938 N.Y.S.2d 836, 962 N.E.2d 257 ). To the extent the defendant claims that a written waiver executed by his counsel on his behalf waiving his statutory right to a speedy trial is invalid because he did not know of or authorize the waiver, the claim rests on matter dehors the record and must therefore be raised by way of a motion pursuant to CPL article 440 (see People v. McDermott, 76 A.D.3d 790, 791, 906 N.Y.S.2d 415 ).
Contrary to the defendant's contention, the County Court's refusal to declare a mistrial, either sua sponte or pursuant to the defendant's motion, based on a witness's testimony referring to the defendant's prior incarceration, was not error (see People v. Cooper, 173 A.D.2d 551, 552, 570 N.Y.S.2d 147 ). The decision whether to grant a mistrial lies within the sound discretion of the trial court (see People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794 ), “which is in the best position to determine if this drastic remedy is truly necessary to protect the defendant's right to a fair trial” (People v. Christian, 139 A.D.3d 870, 870, 29 N.Y.S.3d 817 [internal quotation marks omitted]; see People v. Reaves, 112 A.D.3d 746, 747, 976 N.Y.S.2d 228 ).
Here, while the challenged testimony was improper, any prejudice therefrom was alleviated by the County Court's actions in immediately striking the testimony from the record and providing curative instructions to the jury, which instruction the jury is presumed to have followed (see People v. Maitland,
136 A.D.3d 1058, 1059, 26 N.Y.S.3d 190 ; People v. Reaves, 112 A.D.3d at 747–748, 976 N.Y.S.2d 228 ; People v. Hicks, 84 A.D.3d 1402, 1042–1043, 924 N.Y.S.2d 551 ; People v. Redmon, 81 A.D.3d 752, 752–753, 917 N.Y.S.2d 229 ; People v. Brescia, 41 A.D.3d 613, 614, 836 N.Y.S.2d 432 ; cf. People v. Shaulov, 25 N.Y.3d 30, 6 N.Y.S.3d 218, 29 N.E.3d 227 ; People v. Robinson, 26 A.D.3d 395, 811 N.Y.S.2d 83 ).
The record as a whole demonstrates that the defendant received effective assistance of counsel under both federal and state constitutional standards (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 ; People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; People v. Dorn, 140 A.D.3d 898, 32 N.Y.S.3d 919).
The defendant's remaining contention is without merit.