PEOPLE v. DeCARLIS (2007)

Defendant appeals from a judgment convicting him following a jury trial of driving while ability impaired (Vehicle and Traffic Law § 1192 [1] ) and aggravated unlicensed operation of a motor vehicle in the first degree (§ 511[3][a] ).   Contrary to defendant's contention, the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of driving while ability impaired (see People v. Finger, 95 N.Y.2d 894, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Putt, 303 A.D.2d 992, 993, 757 N.Y.S.2d 661) and, in any event, we conclude that defendant's contention lacks merit (see People v. Crandall, 287 A.D.2d 881, 882, 731 N.Y.S.2d 553, lv. denied 97 N.Y.2d 703, 739 N.Y.S.2d 103, 765 N.E.2d 306;  People v. Currier, 221 A.D.2d 805, 806, 634 N.Y.S.2d 233;  People v. Domanico, 203 A.D.2d 378, 612 N.Y.S.2d 914;  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant also failed to preserve for our review his contentions that he was denied a fair trial based on an allegedly improper comment by County Court during jury selection and based on prosecutorial misconduct on summation (see CPL 470.05[2] ).   In any event, those contentions lack merit (see People v. Thagard, 28 A.D.3d 1097, 1098, 813 N.Y.S.2d 836, lv. denied 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1289;  People v. Kelly, 309 A.D.2d 1149, 1150, 765 N.Y.S.2d 115, lv. denied 1 N.Y.3d 575, 775 N.Y.S.2d 791, 807 N.E.2d 904).

Defendant further contends that the court erred in denying his motion for a mistrial based on the testimony of the arresting officer that defendant previously had been in prison and was on parole at the time of the trial.   The record establishes, however, that the court issued a curative instruction and directed that the testimony be stricken from the record.   We conclude that the court's corrective action “alleviated any prejudice to defendant resulting from that testimony, and thus the court properly exercised its discretion in denying his motion” (People v. Colon, 13 A.D.3d 1198, 1198-1199, 786 N.Y.S.2d 782, lv. denied 4 N.Y.3d 829, 796 N.Y.S.2d 584, 829 N.E.2d 677, 5 N.Y.3d 760, 801 N.Y.S.2d 255, 834 N.E.2d 1265;  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).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: