Opinion
2013-03-19
The PEOPLE of the State of New York, Respondent, v. Porfirio MENDOZA, Defendant–Appellant.
Richard M. Greenberg, Office of The Appellate Defender, New York (Avi Springer of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.
Richard M. Greenberg, Office of The Appellate Defender, New York (Avi Springer of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.
ANDRIAS, J.P., FRIEDMAN, DeGRASSE, FREEDMAN, ABDUS–SALAAM, JJ.
Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered May 31, 2002, as amended December 5, 2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, criminal sale of a controlled substance in or near school grounds, and criminal possession of a controlled substance in the third and fifth degrees, and sentencing him to an aggregate term of three to nine years, unanimously affirmed.
In this observation sale case, the court properly exercised its discretion in permitting testimony that the police chose their observation post in response to complaints about drug sales on that block, and specifically in front of the particular building. This testimony was relevant as background information to explain the selection of that location and to avoid the possibility of jury speculation as to why that location was targeted ( see e.g. People v. Williams, 13 A.D.3d 131, 785 N.Y.S.2d 458 [1st Dept. 2004], lv. denied, 4 N.Y.3d 837, 796 N.Y.S.2d 592, 829 N.E.2d 685 [2005] ). Although defendant objected on the ground of relevance, he did not assert that this testimony was prejudicial. In any event, any prejudice was prevented by the court's limiting instruction, which cautioned the jury that the prior complaints had nothing to do with defendant.
The court properly exercised its discretion in denying defendant's mistrial motion, made after a police witness under cross-examination referred to defendant's prior drug-related arrest. Defense counsel, although aware of defendant's prior arrest in the same building, clearly invited this testimony by pursuing a line of questioning about whether the detective knew defendant prior to the day of the charged sale. The court struck this testimony and gave curative instructions that were sufficient to prevent any prejudice ( see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ), and 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] ).
By failing to object, making general objections or failing to request any specific further relief after the court sustained an objection, defendant failed to preserve his present challenges to the prosecutor's summation ( see People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 [2006] ), and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal ( see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv. denied91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv. denied81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ). The court's curative actions were sufficient to prevent any improprieties from causing prejudice.