Opinion
525
March 19, 2002.
Judgment, Supreme Court, Bronx County (Caesar Cirigliano, J.), rendered June 26, 1998, convicting defendant, after a jury trial, of robbery in the first degree, robbery in the second degree (two counts) and assault in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate terms of 11 years, unanimously affirmed.
NANCY D. KILLIAN, for respondent.
DONALD J. YANNELLA, for defendant-appellant.
Before: Nardelli, J.P., Buckley, Ellerin, Lerner, Rubin, JJ.
The court properly exercised its discretion in denying defendant's mistrial motion based on misconduct by a codefendant in the presence of the jury. The court conducted thorough inquiries of the individual jurors, which established that the codefendant's courtroom behavior had no prejudicial effect on defendant, and delivered thorough curative instructions (see, People v. Smith, 290 A.D.2d 391 [Jan 31, 2002], 2002 N.Y. App. Div. LEXIS 908).
The court properly exercised its discretion in denying defendant's mistrial motion based on a police witness's fleeting reference to a positive identification made by the victim in response to a question by co-defendant's counsel on cross-examination. The officer's response was cut off in mid-sentence, and the court struck the offending testimony and delivered a curative instruction that was sufficient to prevent any prejudice (see, People v. Berg, 59 N.Y.2d 294, 299-300).
Defendant's claim pursuant to Batson v. Kentucky ( 476 U.S. 79) is both procedurally and substantively identical to a claim rejected by this Court on a codefendant's appeal (People v. Sadler, 281 A.D.2d 152, lv denied 96 N.Y.2d 867). We find defendant's claim to be both unpreserved and unavailing for the reasons stated in this Court's prior decision.
Viewing the record as a whole, we find that defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714).
Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.