Summary
In Weston, a motion for a mistrial on the ground that the State would not be able to connect certain evidence to the defendant did not preserve a claim that the trial judge should have prevented references to that evidence to avoid prejudice.
Summary of this case from Ramchair v. ConwayOpinion
Argued May 3, 1982
Decided June 8, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, THADDEUS OWENS, J.
Megan Tallmer and William E. Hellerstein for appellant.
Elizabeth Holtzman, District Attorney ( Michael Yoeli and Barbara D. Underwood of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant's contention that the testimony of the arresting officer could not properly constitute the basis of the trial court's finding of probable cause has not been preserved for our review in that counsel's objections to the court's reliance on the testimony focused upon the sufficiency rather than the reliability of the officer's testimony ( People v Jenkins, 47 N.Y.2d 722).
Similarly unpreserved is defendant's contention that the trial court erred in not issuing a pretrial ruling regarding the admissibility of the knife at trial. If defendant believed that he was prejudiced by references to the knife at trial, to the extent that he was denied a fair trial, it was necessary that he move for a mistrial on this specific ground in order to preserve the issue for appellate review (CPL 470.05, subd 2; 280.10, subd 1; People v Medina, 53 N.Y.2d 951). Defendant's only motion for a mistrial, however, which followed the District Attorney's opening statement, was grounded solely upon the People's inability to connect the knife to defendant and was not based on any claim of prejudice as a result of references to the knife.
Finally, we have reviewed defendant's due process claim regarding the prejudicial effect of various remarks by the People in summation and find the contention to be without merit.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed in a memorandum.