PEOPLE v. BENLOSS (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered November 20, 2003, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 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;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The prosecutor acted improperly in asking a witness if anyone else had been injured in the incident, resulting in testimony that a young girl also was shot.   Such testimony was immaterial to the charges against the defendant, was elicited in violation of the prosecutor's obligations under People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59, and was prejudicial to the defense.   Nevertheless, the Supreme Court providently exercised its discretion in denying the defendant's request for a mistrial.   The prejudice that resulted from the improper testimony was alleviated by the trial court's actions in immediately striking the testimony from the record and providing a curative instruction to the jury (see People v. Whitely, 41 A.D.3d 622, 623, 837 N.Y.S.2d 345;  People v. Oliver, 19 A.D.3d 512, 797 N.Y.S.2d 116;  People v. Kirk, 12 A.D.3d 619, 784 N.Y.S.2d 373), which the jury is presumed to have followed (see People v. Berg, 59 N.Y.2d 294, 299-300, 464 N.Y.S.2d 703, 451 N.E.2d 450;  People v. Hardy, 22 A.D.3d 679, 680, 804 N.Y.S.2d 344).