| People v Dollar |
| 2010 NY Slip Op 09526 [79 AD3d 1062] |
| December 21, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EricDollar, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie,and Skadden, Arps, Slate, Meagher & Flom LLP [Sarah M. Chopp and Kelly Russotti], of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Parker, J.),rendered January 16, 2009, convicting him of robbery in the first degree, robbery in the second degree,and criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is affirmed.
During jury selection, after eight jurors were selected from the first panel of prospective jurors, aprospective juror from the second panel stated that she had overheard a representative of the defendanttalking about the case. In response to inquiries made by the prosecutor and the court of the entirepanel, another prospective juror also admitted to overhearing that conversation. These jurors overhearda discussion in the hallway outside the courtroom regarding various sentences and a potential pleabargain rejected by the defendant. The prosecutor made for-cause challenges to both prospectivejurors who had overheard the subject conversation. Both challenges were opposed by the defendant.After questioning the jurors, the Supreme Court granted the prosecutor's challenge as to one of thejurors and denied the challenge as to the other. On the following day, prior to opening statements, theSupreme Court asked the eight jurors selected from the first panel if they had overheard anyconversations in the hallway relating to the case. One juror came forward and was excused from thejury on consent of both parties. The Supreme Court then instructed the entire jury that the case had tobe decided solely on the evidence received in the courtroom. Thereafter, the defendant moved for a mistrial on the ground that he was prejudiced because other members of the juryoverheard the subject conversation.
The decision to grant or deny a motion for a mistrial lies within the sound discretion of the trialcourt, which is in the best position to determine whether this drastic remedy is necessary to protect thedefendant's right to a fair trial (see People v Ortiz, 54 NY2d 288, 292 [1981]; People v Martin, 54 AD3d 776[2008]; People v Smith, 23 AD3d415 [2005]; People v Williams, 264 AD2d 745 [1999]). Under the circumstances of thiscase, the defendant's motion for a mistrial was properly denied (see CPL 280.10 [1]; People v Martin, 54 AD3d 776[2008]). Skelos, J.P., Balkin, Leventhal and Hall, JJ., concur.