| People v Stanton |
| 2007 NY Slip Op 07103 [43 AD3d 1299] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Richard H.Stanton, Jr., Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Donald E. Todd of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Walter W. Hafner, Jr., J.), renderedMay 17, 2006. The judgment convicted defendant, upon a jury verdict, of burglary in the thirddegree, criminal mischief in the third degree and petit larceny.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofburglary in the third degree (Penal Law § 140.20), criminal mischief in the third degree(§ 145.05 [2]) and petit larceny (§ 155.25). Contrary to defendant's contention, therecord of the Huntley hearing supports County Court's determination that the statementsof defendant to the police were voluntarily made after he waived his Miranda rights (see People v Gainey, 34 AD3d1250 [2006], lv denied 8 NY3d 880 [2007]). Defendant failed to preserve for ourreview his contention that photographs of footprints at the crime scene were improperly admittedin evidence (see generally People v Everson, 100 NY2d 609, 610 [2003]) and, in anyevent, that contention is without merit (see generally People v Wood, 79 NY2d 958, 960[1992]).
Contrary to the further contention of defendant, the court did not err in refusing to grant amistrial based upon the prosecutor's questioning of defendant concerning an uncharged burglary.Reversal based on prosecutorial misconduct is warranted only when the misconduct has causedsuch substantial prejudice to defendant that he was denied due process of law (see People vRubin, 101 AD2d 71, 77 [1984], lv denied 63 NY2d 711 [1984]). "In measuringwhether substantial prejudice has occurred, one must look at the severity and frequency of theconduct, whether the court took appropriate action to dilute the effect of that conduct, andwhether review of the evidence indicates that without the conduct the same result wouldundoubtedly have been reached" (People v Mott, 94 AD2d 415, 419 [1983]). Here,although the court admonished the prosecutor after he first questioned defendant concerning theuncharged burglary, the prosecutor nevertheless asked defendant a second question concerningthe uncharged crime. The court thereupon excused the jury, again admonished the prosecutor,and issued a curative instruction to the jury when it returned to the courtroom. Affording theappropriate deference to the court's decision whether to grant a mistrial (see People vMichael, 48 NY2d 1, 9 [1979]), we conclude that the court properly denied defendant'smotion for a mistrial. Present—Hurlbutt, J.P., Gorski, Lunn, Fahey and Peradotto, JJ.