Opinion
December 6, 1994
Appeal from the Supreme Court, New York County (Richard Carruthers, J.).
The court did not abuse its discretion in denying defendant's motion for a severance since the defenses of nonparticipation proffered by him and his codefendant were not in irreconcilable conflict (see, People v Mahboubian, 74 N.Y.2d 174, 184; People v Smith, 204 A.D.2d 166, lv denied 84 N.Y.2d 832; People v Nesbitt, 198 A.D.2d 33, lv denied 82 N.Y.2d 900). Moreover, severance was not required because the codefendant absconded before trial. Counsel voiced no objection to the court's instructions to the jury in regard to his absence. Therefore, no objection concerning their adequacy is preserved for review (see, People v Santiago, 52 N.Y.2d 865, 866), and we decline to reach the issue in the interest of justice.
Defendant also contends that he was deprived of a fair trial because the prosecutor elicited testimony from his mother concerning a prior incarceration and because some of the prosecutor's questions contravened the court's Sandoval ruling permitting the People to elicit the previous felony conviction but precluding inquiry into the underlying facts. Mention of defendant's prior incarceration did not exceed the court's Sandoval ruling. The court sustained defense counsel's objections and delivered an appropriate curative instruction as suggested by counsel, which defendant may not now challenge (CPL 470.05) and properly denied the motions for a mistrial (People v Santiago, supra; People v Celeste, 95 A.D.2d 961). In both the preliminary and final charge, the court directed the jury to disregard stricken testimony, an instruction the jurors are presumed to have followed (People v Canty, 60 N.Y.2d 830, 832).
Concur — Sullivan, J.P., Ross, Asch and Rubin, JJ.