PEOPLE v. WARD (2025)

Judgment, Supreme Court, Bronx County (David L. Lewis, J.), rendered April 2, 2019, convicting defendant, after a jury trial, of criminal possession of a weapon in the third and fourth degrees, attempted assault in the second degree, and unauthorized use of a vehicle in the third degree, and sentencing him, as a second felony offender, to an aggregate term of 2 to 4 years, unanimously affirmed.

Defendant failed to preserve his claim challenging the court's curative instruction after a witness testified unexpectedly that defendant held a gun to the head of the driver of the minivan (see People v. Silva, 204 A.D.3d 450, 451, 166 N.Y.S.3d 20 [2022], lv denied 38 N.Y.3d 1074, 171 N.Y.S.3d 452, 191 N.E.3d 404 [2022]), and we decline to review it in the interest of justice.  In any event, we find that the court providently exercised its discretion in denying counsel's motion for a mistrial based on that testimony, and the court's “prompt curative action” was sufficient to minimize any prejudice from the witness's comment (People v. Santiago, 52 N.Y.2d 865, 866, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981]).  Indeed, the jury acquitted defendant of the robbery charges related to the driver of the minivan.

The court also properly denied defendant's motion for a missing witness charge (see People v. Savinon, 100 N.Y.2d 192, 197, 761 N.Y.S.2d 144, 791 N.E.2d 401 [2003]).  The People demonstrated that the testimony would have been cumulative to the testimony of other witnesses to the shooting, and surveillance video depicting the shooting and defendant's flight from the scene (see People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986]).  In any event, we find that any error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).