| People v Benloss |
| 2009 NY Slip Op 01656 [60 AD3d 686] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 60—The People of the State of New York,Respondent, v Gary Benloss, Appellant. |
—[*1] [*2]Charles J. Hynes, District Attorney, Brooklyn, N.Y.(Leonard Joblove, Karol B. Mangum, and Solomon Neubort of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.),rendered November 20, 2003, convicting him of murder in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The prosecutor acted improperly in asking a witness if anyone else had been injured in theincident, resulting in testimony that a young girl also was shot. Such testimony was immaterialto the charges against the defendant, was elicited in violation of the prosecutor's obligationsunder People v Ventimiglia (52 NY2d 350, 359 [1981]), and was prejudicial to thedefense. Nevertheless, the Supreme Court providently exercised its discretion in denying thedefendant's request for a mistrial. The prejudice that resulted from the improper testimony wasalleviated by the trial court's actions in immediately striking the testimony from the record andproviding a curative instruction to the jury (see People v Whitely, 41 AD3d 622, 623 [2007]; People v Oliver, 19 AD3d 512[2005]; People v Kirk, 12 AD3d619 [2004]), which the jury is presumed to have followed (see People v Berg, 59NY2d 294, 299-300 [1983]; People vHardy, 22 AD3d 679, 680 [2005]). Spolzino, J.P., Ritter, Miller and Balkin, JJ., concur.