PEOPLE v. ZURN (2008)

On appeal from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15[4] ) and robbery in the second degree (§ 160.10[1] ), defendant contends that he was denied his right to a fair trial based on prosecutorial misconduct.   According to defendant, the prosecutor engaged in misconduct by asking one of the People's witnesses to identify three letters written by defendant to her and to another prosecution witness.   Defendant further contends that County Court erred in denying his motion for a mistrial based upon that alleged prosecutorial misconduct.   We reject those contentions.   The record does not support defendant's contention that the prosecutor knowingly elicited false testimony concerning the letters (see generally People v. Leary, 145 A.D.2d 732, 734, 535 N.Y.S.2d 471, lv. denied 73 N.Y.2d 1017, 541 N.Y.S.2d 772, 539 N.E.2d 600;  People v. Slaughter, 138 A.D.2d 835, 836-837, 525 N.Y.S.2d 942, lv. denied 72 N.Y.2d 866, 532 N.Y.S.2d 516, 528 N.E.2d 907).   In addition, the court instructed the jury to disregard the letters and the testimony concerning them, “and we conclude that the court's ‘firm control over the trial obviated any prejudice to defendant’ resulting from the prosecutor's alleged misconduct” (People v. Kester, 45 A.D.3d 1355, 1356, 844 N.Y.S.2d 804, lv. denied 10 N.Y.3d 767, 854 N.Y.S.2d 329, 883 N.E.2d 1264;  see People v. Delaney, 42 A.D.3d 820, 822, 839 N.Y.S.2d 631, lv. denied 9 N.Y.3d 922, 844 N.Y.S.2d 177, 875 N.E.2d 896).   Defendant's further contention that the court's curative instruction was inadequate is not preserved for our review (see People v. Santiago, 52 N.Y.2d 865, 866, 437 N.Y.S.2d 75, 418 N.E.2d 668), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: