PEOPLE v. PRIESTER (1998)

Judgment, Supreme Court, Bronx County (Robert Straus, J.), rendered November 21, 1995, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 12 to 24 years and 7 to 14 years, respectively, unanimously affirmed.

 Testimony concerning defendant's talk of killing an eyewitness, the prosecutor and defendant's prior attorney during defendant's aborted first trial was properly admitted as evidence of defendant's consciousness of guilt (People v. Herrera, 245 A.D.2d 12, 665 N.Y.S.2d 643, lv. denied 92 N.Y.2d 853, 677 N.Y.S.2d 83, 699 N.E.2d 443).   The probative value of this evidence outweighed its prejudicial effect.

 The court properly exercised its discretion when it denied defendant's motion for a mistrial after a witness testified that a member of the audience had made a threatening gesture during his testimony.   Any prejudice was ameliorated when the court struck the testimony and issued curative instructions to the jury, which, inter alia, indicated that there was no link between defendant and the person who made the gesture (People v. Owens, 214 A.D.2d 480, 625 N.Y.S.2d 524, lv. denied 86 N.Y.2d 799, 632 N.Y.S.2d 513, 656 N.E.2d 612).

MEMORANDUM DECISION.