Opinion
10-26-2016
The PEOPLE, etc., respondent, v. Jonathan SMITH, appellant.
Andrew E. MacAskill, Westbury, N.Y., for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Jason Richards and Adam S. Charnoff of counsel), for respondent.
Andrew E. MacAskill, Westbury, N.Y., for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Jason Richards and Adam S. Charnoff of counsel), for respondent.
MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Gugerty, J.), rendered April 9, 2015, convicting him of criminal contempt in the first degree, criminal contempt in the second degree, tampering with a witness in the fourth degree, and harassment in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court improvidently exercised its discretion in removing him from the courtroom is without merit (see CPL 260.20 ; People v. Byrnes, 33 N.Y.2d 343, 349–350, 352 N.Y.S.2d 913, 308 N.E.2d 435 ). The record shows that the defendant, by his conduct, forfeited his right to be present at his trial (see People v. Baxter, 102 A.D.3d 805, 805, 961 N.Y.S.2d 194 ; People v. Mitchell, 69 A.D.3d 761, 762, 894 N.Y.S.2d 60 ).
Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his motion for a mistrial. “The decision whether to declare a mistrial necessarily rests in the broad discretion of the trial court, which is best situated to consider all the circumstances, and its determination is entitled to great weight on appeal” (People v. Diggs, 25 A.D.3d 807, 808, 807 N.Y.S.2d 579 ; see People v. Brown, 76 A.D.3d 532, 533, 904 N.Y.S.2d 911 ). The complainant's reference to the defendant's possible uncharged crimes during her testimony was brief, defense counsel failed to immediately move for a mistrial, and, once defense counsel moved for a mistrial, the court took curative action (see People v. Santiago, 52 N.Y.2d 865, 866, 437 N.Y.S.2d 75, 418 N.E.2d 668 ; People v. Dubois, 116 A.D.3d 878, 878, 983 N.Y.S.2d 734 ; People v. Brown, 106 A.D.3d 755, 755–756, 963 N.Y.S.2d 732 ; People v. Hicks, 84 A.D.3d 1402, 1402–1403, 924 N.Y.S.2d 551 ; People v. Miller, 78 A.D.3d 733, 734, 911 N.Y.S.2d 91 ; People v. Guzman, 239 A.D.2d 431, 431, 658 N.Y.S.2d 897 ).