Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. James THOMPSON, Defendant-Appellant.

Decided: November 17, 2009

GONZALEZ, P.J., SAXE, McGUIRE, ACOSTA, ROMAN, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), and Cleary Gottlieb Steen & Hamilton LLP, New York (Molly M. Lens of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Craig A. Ascher of counsel), for respondent.

Judgment, Supreme Court, New York County (Marcy L. Kahn, J.), rendered March 3, 2008, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a second felony drug offender, to an aggregate term of 4 years, unanimously affirmed.

 The court denied defendant's mistrial motion made after the prosecutor, without having obtained a ruling on the matter during the pretrial Sandoval hearing, asked defendant on cross-examination whether he had owed child support arrears at the time of the alleged sale of narcotics.   Even assuming that the prosecutor's questions violated the Sandoval ruling, the court properly exercised its discretion in denying the mistrial motion.   The court provided a sufficient remedy when it promptly struck all questions and answers on the issue, and delivered curative instructions that 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 [1981];  People v. Robles, 28 A.D.3d 233, 811 N.Y.S.2d 668 [2006], lv. denied 7 N.Y.3d 817, 822 N.Y.S.2d 492, 855 N.E.2d 808 [2006] ).   In addition, the record supports an inference that the prosecutor did not act in bad faith, but believed that such a ruling was not required.

 The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   There is no basis for disturbing the jury's determinations concerning credibility.   Regardless of whether the evidence established a complete chain of custody for the narcotics recovered from defendant and the buyer, the evidence provided “reasonable assurances of the identity and unchanged condition of the evidence” (see People v. Hawkins, 11 N.Y.3d 484, 494, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ), and in performing our weight of the evidence review we do not find that any gaps in the chain are significant enough to undermine the verdict.