| People v Melendez |
| 2008 NY Slip Op 03496 [50 AD3d 485] |
| April 22, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Catherine Melendez, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Caesar D. Cirigliano, J.), rendered July15, 2005,convicting defendant, after a jury trial, of assault in the first degree, and sentencing her to a termof 10 years, unanimously affirmed.
The court properly denied defendant's mistrial motion, made after the prosecutor elicitedfrom a defense witness that she had visited defendant during defendant's pretrial incarceration.Under the circumstances of the case, the witness's knowledge that her friend was incarceratedwas arguably inconsistent with her failure to come forward with exculpatory evidence (seePeople v Jenkins, 88 NY2d 948 [1996]). We note that the court offered to provide a curativeinstruction, but defendant declined that offer.
By failing to object, by making generalized objections, or by failing to request further reliefafter the court took curative actions, defendant failed to preserve her other challenges to theprosecutor's cross-examination of defense witnesses, or any of her contentions regardingevidence of her prearrest silence, the prosecutor's summation or the court's main charge andresponse to a jury note, and we decline to review them in the interest of justice. As an alternativeholding, we also reject them on the merits.
On the existing record, to the extent it permits review, we find that defendant receivedeffective assistance under the state and federal standards (see People v Benevento, 91NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466 US 668 [1984]).Even if trial counsel should have raised the issues suggested by defendant on appeal, we wouldfind that his failure to do so did not deprive defendant of a fair trial or cause her any prejudice(see People v Caban, 5 [*2]NY3d 143, 155-156 [2005];People v Hobot, 84 NY2d 1021, 1024 [1995]; compare People v Turner, 5 NY3d 476 [2005]).Concur—Lippman, P.J., Saxe, Gonzalez and Nardelli, JJ.