PEOPLE v. OCHOA

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

The PEOPLE of the State of New York, Respondent, v. Ernesto OCHOA, Defendant-Appellant.

Decided: June 28, 2005

TOM, J.P., FRIEDMAN, GONZALEZ, CATTERSON, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York, and Linklaters, New York (Andrea Fort of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Leilani J. Rodriguez of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), rendered May 8, 2003, convicting defendant, after a jury trial, of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree, 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 affirmed.

The court properly exercised its discretion in denying defendant's request for a mistrial made on the basis of a witness's unsolicited reference to uncharged crimes.   The court's curative actions were sufficient to prevent any undue prejudice (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981];  People v. Young, 48 N.Y.2d 995, 425 N.Y.S.2d 546, 401 N.E.2d 904 [1980] ).   Furthermore, the challenged evidence did not deprive defendant of a fair trial (see People v. Pressley, 216 A.D.2d 202, 628 N.Y.S.2d 682 [1995], lv. denied 86 N.Y.2d 800, 632 N.Y.S.2d 514, 656 N.E.2d 613 [1995] ), and there was overwhelming evidence of defendant's guilt.

We perceive no basis for reducing the sentence.

We have considered and rejected defendant's remaining arguments.