PEOPLE v. MARTINEZ (2001)

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered July 16, 1998, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

The court properly exercised its discretion in denying defendant's mistrial motion made after the jurors observed an elderly witness require medical assistance immediately following his testimony.   The court made a thorough inquiry, and each juror stated that he or she could be fair and that the events would have no impact on his or her verdict (see, People v. Brunson, 270 A.D.2d 133, 707 N.Y.S.2d 1, lv. denied 95 N.Y.2d 833, 713 N.Y.S.2d 139, 735 N.E.2d 419).   Moreover, the court issued a curative instruction to the jurors, instructing them to disregard what had happened to the witness, and the jury is presumed to have followed the instructions (People v. Berg, 59 N.Y.2d 294, 299-300, 464 N.Y.S.2d 703, 451 N.E.2d 450).

Defendant's claim that his sentence to the minimum term authorized by law was unconstitutional is unpreserved (People v. Ford, 265 A.D.2d 248, 696 N.Y.S.2d 819, lv. denied 94 N.Y.2d 880, 705 N.Y.S.2d 12, 726 N.E.2d 489), and we decline to review it in the interest of justice.   Were we to review this claim, we would find that imposition of the minimum term was not unconstitutional (see, People v. Broadie, 37 N.Y.2d 100, 111, 371 N.Y.S.2d 471, 332 N.E.2d 338).   Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent felony offender is likewise unpreserved for appellate review and, in any event, is without merit (see, People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 [2001], 2001 U.S. LEXIS 6692).