PEOPLE v. HENRY (2004)

Defendant appeals from a judgment convicting him after a jury trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1] ), criminal possession of a controlled substance in the third degree (§ 220.16[1] ), and criminal possession of a controlled substance in the seventh degree (§ 220.03).   Contrary to the contention of defendant, County Court did not abuse its discretion in denying his motion for a mistrial based on two violations of the court's Ventimiglia ruling (see generally People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794;  People v. Holton, 225 A.D.2d 1021, 640 N.Y.S.2d 708, lv. denied 88 N.Y.2d 986, 649 N.Y.S.2d 393, 672 N.E.2d 619).   With respect to the testimony concerning defendant's possession of mechanical scales, we note that defense counsel opened the door to that testimony, and thus it was properly received (see People v. Mateo, 2 N.Y.3d 383, 419, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  see also People v. Rojas, 97 N.Y.2d 32, 38-39, 735 N.Y.S.2d 470, 760 N.E.2d 1265).   Although defense counsel did not open the door to the testimony concerning defendant's possession of a crack pipe containing cocaine residue, we conclude that the court's prompt and explicit curative instruction alleviated any prejudice to defendant arising from that testimony.   Following those curative instructions, defendant “neither objected further, nor requested a mistrial.   Under these circumstances, the curative instructions must be deemed to have corrected the error to the defendant's satisfaction” (People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370;  see People v. Brown, 309 A.D.2d 1258, 765 N.Y.S.2d 562, lv. denied 1 N.Y.3d 595, 776 N.Y.S.2d 227, 808 N.E.2d 363).   Finally, viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

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

MEMORANDUM: