PEOPLE v. RANDOLPH

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

The PEOPLE of the State of New York, Respondent, v. Jordan RANDOLPH, Defendant-Appellant.

Decided: November 15, 2005

MAZZARELLI, J.P., ANDRIAS, SULLIVAN, WILLIAMS, MALONE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Mary C. Farrington of counsel), for respondent.

Judgment, Supreme Court, New York County (Eduardo Padro, J.), rendered January 22, 2003, convicting defendant, after a jury trial, of nine counts of criminal sale of a controlled substance in the third degree and three counts of criminal sale of a controlled substance in or near school grounds, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously affirmed.

 The verdict was not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   There is no basis for disturbing the jury's determinations concerning identification and credibility.   Multiple undercover officers, who repeatedly encountered defendant during an investigation lasting five months, had ample opportunity to acquaint themselves with defendant, who identified himself by his full name during one encounter.

 The court took sufficient remedial action to obviate any prejudice from the People's untimely mid-trial delivery of Rosario material.   Defendant received a full opportunity to use the material in question, and the court provided an adverse inference instruction.   The Rosario violation did not have any significant impact on defendant's misidentification defense (see People v. Harrell, 284 A.D.2d 248, 729 N.Y.S.2d 2 [2001], lv. denied 97 N.Y.2d 657, 737 N.Y.S.2d 58, 762 N.E.2d 936 [2001];  see also CPL 240.75), and defendant's arguments to the contrary are unpersuasive (compare People v. Goins, 73 N.Y.2d 989, 540 N.Y.S.2d 994, 538 N.E.2d 346 [1989] ).

 The court properly exercised its discretion in denying defendant's mistrial motion made when a police officer blurted out on cross-examination that he was told that defendant had a violent history.   The court's thorough curative actions were sufficient to prevent any prejudice (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ).

We perceive no basis for reducing the sentence.