PEOPLE v. MATOS COLON (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (William M. Harrington, J.), rendered July 14, 2022, convicting him of criminal sexual act in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged with, inter alia, criminal sexual act in the first degree based on allegations that he engaged in oral sexual conduct with the then 12–year–old complainant.  After a jury trial, the defendant was convicted of that offense.

The defendant's contention that the Supreme Court erred in denying his application for a mistrial is without merit.  “The decision to grant a mistrial lies within the sound discretion of the trial court, which is in the best position to determine whether a mistrial is necessary to protect the defendant's right to a fair trial” (People v. Williams, 214 AD3d 828, 830;  see People v. Ortiz, 54 N.Y.2d 288, 292).  “In balancing the proper considerations, a court should consider ‘the availability of less drastic means of alleviating whatever prejudice may have resulted’ from the error” (People v. Williams, 214 AD3d at 830, quoting People v. Young, 48 N.Y.2d 995, 996).

The defendant's application for a mistrial was based upon his contention that the People improperly played for the jury a portion of a controlled telephone call between the defendant and the complainant in which the complainant referenced uncharged criminal conduct.  However, the Supreme Court gave a curative instruction to the jury that it was not to consider the challenged statement, which instruction the jury is presumed to have followed (see People v. Morris, 207 AD3d 477, 478;  People v. Martin, 141 AD3d 734, 736).  In addition to the court's curative instruction, the evidence of the defendant's guilt, which included, inter alia, the properly admitted portions of the controlled call wherein the defendant acknowledged having engaged in oral sexual conduct with the complainant when the complainant was 12 years old, was overwhelming, and there was no significant probability that the improperly played portion of the call contributed to his conviction.  Accordingly, the error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 241–242;  People v. Williams, 214 AD3d at 830).  Furthermore, the error did not deprive the defendant of a fair trial.

The defendant failed to preserve for appellate review his contentions that the sentence imposed by the Supreme Court improperly penalized him for exercising his right to a jury trial and violated his right against self-incrimination, since he did not set forth those issues on the record at the time of sentencing (see People v. Trantham, 225 AD3d 714, 716–717;  People v. Brown, 220 AD3d 802, 804).  In any event, the record fails to establish that the court penalized the defendant for exercising his right to proceed to trial (see People v. Limbu, 219 AD3d 756, 757), or violated his right against self-incrimination.  Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

DILLON, J.P., WARHIT, LANDICINO and OTTLEY, JJ., concur.