Opinion
06-10-2016
The PEOPLE of the State of New York, Respondent, v. Vernon V. SPEARS, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester, Harris Beach PLLC, Pittsford (Kara E. Stoddart of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester, Harris Beach PLLC, Pittsford (Kara E. Stoddart of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, and SCUDDER, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ). At trial, a police officer testified, in violation of Supreme Court's prior Ventimiglia ruling, that he became involved in the subject investigation upon receiving “a call for a gun point robbery.” Defense counsel objected, and the court struck the testimony, instructed the jury to disregard it, and excused the jury. Defense counsel then moved for a mistrial outside the presence of the jury, and the court determined that it would issue a further curative instruction rather than granting the motion. The jury returned, and the court again instructed it to disregard the testimony. Defendant contends on appeal that the court abused its discretion in denying his motion for a mistrial.
As an initial matter, we conclude that defendant was not required to make a further objection or request for relief following the court's curative instructions in order to preserve for our review his contention that the court erred in denying his motion for a mistrial (see People v. Smith, 97 N.Y.2d 324, 329–330, 740 N.Y.S.2d 279, 766 N.E.2d 941 ; People v. Barranco, 174 A.D.2d 343, 344–345, 570 N.Y.S.2d 555 ; cf. People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370 ). To the extent that prior decisions of this Court, including People v. Ielfield, 132 A.D.3d 1298, 1298–1299, 18 N.Y.S.3d 229, suggest a contrary rule, those decisions are not to be followed. With respect to the merits, however, we conclude that the court's instructions were sufficient to alleviate any prejudice resulting from the police officer's single statement (see People v. Allen, 78 A.D.3d 1521, 1521, 911 N.Y.S.2d 528, lv. denied 16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179 ; People v. Young, 55 A.D.3d 1234, 1236, 864 N.Y.S.2d 584, lv. denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771 ; cf. Barranco, 174 A.D.2d at 344–345, 570 N.Y.S.2d 555 ), and we note that “[i]t is well settled that ‘the jury is presumed to have followed’ th[ose] curative instruction[s]” (Allen, 78 A.D.3d at 1521, 911 N.Y.S.2d 528 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.