THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MORRIS WHITE DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MORRIS H. WHITE, DEFENDANT–APPELLANT.

KA 14–00107

Decided: June 19, 2015

PRESENT:  CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ. LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, following a jury trial, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ) and criminal possession of a controlled substance in the third degree (§ 220.16[1] ).   The evidence at trial established that defendant sold five pills containing oxycodone to a police informant in the City of Canandaigua.   We reject defendant's initial contention that County Court should have granted his motion for a mistrial during voir dire based on comments about defendant's sister made by a prospective juror who was later excused for cause.  “It is well settled that the decision to declare a mistrial rests within the sound discretion of the trial court, which is in the best position to determine if this drastic remedy is truly necessary to protect the defendant's right to a fair trial” (People v. Lewis, 247 A.D.2d 866, 866, lv denied 93 N.Y.2d 1021 [internal quotation marks omitted];  see People v. Ortiz, 54 N.Y.2d 288, 292).   Here, we conclude that, inasmuch as the prospective juror's comments did not relate directly to defendant and were not so prejudicial as to deprive him of a fair trial, the court did not abuse its discretion in denying the motion for a mistrial (see generally Ortiz, 54 N.Y.2d at 292;  People v. Boler, 4 AD3d 768, 768, lv denied 2 NY3d 761).   Defendant failed to preserve for our review his further contention that he was deprived of a fair trial because a police detective identified defendant's sister in the courtroom during the trial (see People v. Angona, 119 AD3d 1406, 1409, lv denied 25 NY3d 987), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

We reject defendant's contention that the court should have granted his motion for a mistrial after a police detective testified that defendant, upon his arrest, asked to work as a police informant.   The record establishes that the testimony was a “ ‘surprise to everyone’ “ and was not the result of any “ ‘willful misconduct by the People’ “ (People v. Lucie, 49 AD3d 1253, 1255, lv denied 10 NY3d 936;  see People v. Jacobs, 37 AD3d 868, 870, lv denied 9 NY3d 923).   Moreover, the court limited the prejudice to defendant by sustaining his objection, striking the testimony, and providing a curative instruction (see Lucie, 49 AD3d at 1255;  People v. Mims, 278 A.D.2d 822, 823, lv denied 96 N.Y.2d 832).

Defendant failed to preserve for our review his contention that he was deprived of a fair trial by incidents of prosecutorial misconduct (see CPL 470.05[2];  People v. Swan, 126 AD3d 1527, 1527).   In any event, we conclude that none of the alleged misconduct by the prosecutor was so egregious as to deprive defendant of a fair trial (see People v. Jackson, 108 AD3d 1079, 1079–1080, lv denied 22 NY3d 997).

We have reviewed defendant's remaining contentions and conclude that they lack merit.

Frances E. Cafarell

Clerk of the Court