Opinion
July 24, 1989
Appeal from the County Court, Westchester County (Cowhey, J.).
Ordered that the judgment is affirmed.
The defendant contends that because there was a possibility that during an emergency evacuation of the courthouse the jury might have seen him in handcuffs, the court erred in denying his request for a mistrial or alternatively for a voir dire of the jury concerning this event. The defendant adduced no evidence to show that members of the jury did see him, but instead relied upon the statement of his trial counsel, who claimed that during the evacuation he saw the defendant through a courthouse window. Our review of the record indicates that the defendant's allegations regarding his viewing by the jury are unsubstantiated, and therefore we find that there was no improvident exercise of discretion by the trial court in not allowing a voir dire of the jury (see, People v Harper, 47 N.Y.2d 857, 858; People v Volpe, 116 A.D.2d 609, 610) or in refusing to declare a mistrial (Hall v Potoker, 49 N.Y.2d 501; People v Michael, 48 N.Y.2d 1). As to the defendant's remaining contention, we find that the mere possibility that the jury might have seen the defendant in handcuffs did not involve prejudice to the defendant so as to require a curative instruction sua sponte. Since there was no application by the defendant for a curative instruction, this issue is unpreserved for appellate review (see, CPL 470.05; People v Udzinski, 146 A.D.2d 245). Mangano, J.P., Eiber, Sullivan and Balletta, JJ., concur.