PEOPLE v. COMFORT (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of two counts of rape in the second degree (Penal Law § 130.30 [1] ), one count of rape in the third degree (§ 130.25[2] ), and four counts of endangering the welfare of a child (§ 260.10[1] ).   Contrary to the contention of defendant, County Court did not err in summarily denying his motion to set aside the verdict based upon the unsupported claim that a deputy had spoken to a juror during deliberations (see People v. Laguer, 195 A.D.2d 483, 484, 599 N.Y.S.2d 859, lv. denied 82 N.Y.2d 756, 603 N.Y.S.2d 998, 624 N.E.2d 184;  see also People v. Bryan, 270 A.D.2d 875, 705 N.Y.S.2d 924, lv. denied 95 N.Y.2d 904, 716 N.Y.S.2d 645, 739 N.E.2d 1150).   Defendant's motion papers did “not contain sworn allegations of all facts essential to support the motion” (CPL 330.40[2][e][ii] ), nor did they “allege any ground constituting legal basis for the” relief requested (CPL 330.40[2][e][i] ).   Hearsay allegations are insufficient to support a claim of juror misconduct (see People v. Bradley, 258 A.D.2d 936, 685 N.Y.S.2d 357, lv. denied 93 N.Y.2d 922, 693 N.Y.S.2d 505, 715 N.E.2d 508;  People v. Hentley, 155 A.D.2d 392, 393, 547 N.Y.S.2d 876, lv. denied 75 N.Y.2d 919, 555 N.Y.S.2d 38, 554 N.E.2d 75).

 Contrary to defendant's further contention, reversal is not required as a result of the unprompted testimony of a prosecution witness that she had seen defendant on the television news in connection with a prior accusation of rape.   Given the inadvertence and fleeting nature of that testimony (see People v. Greene, 250 A.D.2d 547, 673 N.Y.S.2d 143, lv. denied 92 N.Y.2d 925, 680 N.Y.S.2d 466, 703 N.E.2d 278;  People v. Mosley, 170 A.D.2d 990, 990-991, 566 N.Y.S.2d 146, lv. denied 77 N.Y.2d 964, 570 N.Y.S.2d 498, 573 N.E.2d 586), the court's prompt corrective action was sufficient to alleviate any prejudice (see People v. Santiago, 52 N.Y.2d 865, 866, 437 N.Y.S.2d 75, 418 N.E.2d 668;  Greene, 250 A.D.2d 547, 673 N.Y.S.2d 143).   The jury is presumed to have followed the court's curative instructions (see People v. Cruz, 272 A.D.2d 922, 923, 709 N.Y.S.2d 717, affd. 96 N.Y.2d 857, 730 N.Y.S.2d 29, 754 N.E.2d 1112;  People v. Davis, 58 N.Y.2d 1102, 1104, 462 N.Y.S.2d 816, 449 N.E.2d 710).   We thus conclude that the court properly denied defendant's request for a mistrial (see People v. Zanghi, 256 A.D.2d 1120, 684 N.Y.S.2d 804, lv. denied 93 N.Y.2d 881, 689 N.Y.S.2d 443, 711 N.E.2d 657), especially given the overwhelming nature of the evidence against defendant (see Greene, 250 A.D.2d 547, 673 N.Y.S.2d 143).   Finally, defendant was not deprived of a fair trial by the prosecutor's comments on summation, which were not so inflammatory or egregious as to deny defendant due process (see People v. Cohen, 302 A.D.2d 904, 905, 753 N.Y.S.2d 796;  People v. Alshoaibi, 273 A.D.2d 871, 873, 711 N.Y.S.2d 646, lv. denied 95 N.Y.2d 960, 722 N.Y.S.2d 477, 745 N.E.2d 397).

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

MEMORANDUM: