Opinion
November 26, 1990
Appeal from the Supreme Court, Queens County (Calabretta, J.).
Ordered that the judgment is affirmed.
The defendant argues that the court should have granted his motion for a mistrial when it was discovered that some of the jurors viewed a newspaper article and accompanying photograph reporting the events at trial the previous day. We disagree.
The Court of Appeals has observed that "`[b]ecause juror misconduct can take many forms, no ironclad rule of decision is possible. In each case the facts must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered'" (People v. Testa, 61 N.Y.2d 1008, 1009, citing People v. Brown, 48 N.Y.2d 388, 394). Thus, "mere exposure to accounts in newspapers pertaining to a defendant and his conduct, without more, is insufficient to rebut the presumption of a juror's impartiality and to warrant disqualification" (People v. Costello, 104 A.D.2d 947, 948). The court need not disqualify a juror if "reasonable inquiry" demonstrates that he or she can remain impartial (People v. Costello, supra).
In the instant case, the court methodically conducted a voir dire of the jurors and each juror expressed unequivocally that the article and photograph would not affect his or her ability to remain impartial. Accordingly, the court did not improvidently exercise its discretion in declining to grant a mistrial (see, People v. Testa, supra; People v. Brown, 136 A.D.2d 1; People v. Costello, supra).
We also reject the defendant's argument that the court improperly excluded testimony about his blood type. Because the prosecution made no argument regarding the blood type of the suspect, the evidence regarding the defendant's blood type would have been irrelevant and confusing (see, People v. Brown, supra, at 16).
In addition, we note that the court properly sentenced the defendant as a persistent felony offender (see, People v. Sailor, 65 N.Y.2d 224, 235, cert. denied 474 U.S. 982; People v. Sasso, 99 A.D.2d 558; People v. Oliver, 96 A.D.2d 1104, affd. 63 N.Y.2d 973).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Harwood, J.P., Balletta, Miller and O'Brien, JJ., concur.