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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Richard H. STANTON, Jr., Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., GORSKI, LUNN, FAHEY, AND PERADOTTO, JJ. Carl M. Darnall, Fairport, for Defendant-Appellant. Donald H. Dodd, District Attorney, Oswego (Donald E. Todd of Counsel), for Respondent.

Defendant appeals from a judgment convicting him, following a jury trial, of burglary in the third degree (Penal Law § 140.20), criminal mischief in the third degree (§ 145.05[2] ) and petit larceny (§ 155.25).   Contrary to defendant's contention, the record of the Huntley hearing supports County Court's determination that the statements of defendant to the police were voluntarily made after he waived his Miranda rights (see People v. Gainey, 34 A.D.3d 1250, 823 N.Y.S.2d 711, lv. denied 8 N.Y.3d 880, 885, 832 N.Y.S.2d 492, 497, 864 N.E.2d 622, 627).   Defendant failed to preserve for our review his contention that photographs of footprints at the crime scene were improperly admitted in evidence (see generally People v. Everson, 100 N.Y.2d 609, 610, 767 N.Y.S.2d 389, 799 N.E.2d 613) and, in any event, that contention is without merit (see generally People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178).

 Contrary to the further contention of defendant, the court did not err in refusing to grant a mistrial based upon the prosecutor's questioning of defendant concerning an uncharged burglary.   Reversal based on prosecutorial misconduct is warranted only when the misconduct has caused such substantial prejudice to defendant that he was denied due process of law (see People v. Rubin, 101 A.D.2d 71, 77, 474 N.Y.S.2d 348, lv. denied 63 N.Y.2d 711, 480 N.Y.S.2d 1038, 469 N.E.2d 114).  “In measuring whether substantial prejudice has occurred, one must look at the severity and frequency of the conduct, whether the court took appropriate action to dilute the effect of that conduct, and whether review of the evidence indicates that without the conduct the same result would undoubtedly have been reached” (People v. Mott, 94 A.D.2d 415, 419, 465 N.Y.S.2d 307).   Here, although the court admonished the prosecutor after he first questioned defendant concerning the uncharged burglary, the prosecutor nevertheless asked defendant a second question concerning the uncharged crime.   The court thereupon excused the jury, again admonished the prosecutor, and issued a curative instruction to the jury when it returned to the courtroom.   Affording the appropriate deference to the court's decision whether to grant a mistrial (see People v. Michael, 48 N.Y.2d 1, 9, 420 N.Y.S.2d 371, 394 N.E.2d 1134), we conclude that the court properly denied defendant's motion for a mistrial.

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