PEOPLE v. GRAY

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

The PEOPLE of the State of New York, Respondent, v. Marvin GRAY, Defendant-Appellant.

Decided: May 06, 2004

NARDELLI, J.P., SAXE, WILLIAMS, FRIEDMAN, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jennifer Chung of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered February 25, 2002, convicting defendant of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 5 to 10 years, and otherwise affirmed.

 The court properly exercised its discretion in denying defendant's mistrial motion, made after an officer testified during cross-examination about attempting to buy drugs from defendant on a prior occasion.   The court prevented any prejudice when it struck the officer's response and gave a prompt curative instruction, which the jury is presumed to have followed (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668).

 We find the sentence excessive to the extent indicated.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.