PEOPLE v. WHITELY (2007)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered January 6, 2005, convicting him of attempted robbery in the first degree and attempted robbery in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The Supreme Court providently exercised its discretion in denying the defendant's motion for a mistrial.   The decision whether to grant a motion for mistrial rests within the sound discretion of the trial court (see People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794), which is in the best position to determine if it is necessary to protect the defendant's right to a fair trial (see People v. Cooper, 173 A.D.2d 551, 570 N.Y.S.2d 147).   Although one of the prosecution's witnesses testified on cross-examination that she knew the defendant “for robbing other people,” the Supreme Court struck the testimony, gave a curative instruction, and, upon the defendant's motion for a mistrial, gave further curative instructions (see People v. Hernandez, 11 A.D.3d 479, 782 N.Y.S.2d 776).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).