| People v Proctor |
| 2013 NY Slip Op 01952 [104 AD3d 1290] |
| March 22, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RickyProctor, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia,A.J.), rendered December 10, 2010. The judgment convicted defendant, upon a juryverdict, of murder in the second degree and criminal possession of a weapon in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, murder in the second degree (Penal Law § 125.25 [1]). Wereject defendant's contention that Supreme Court erred in denying his motion for amistrial after a witness testified that she had seen defendant's photograph in a photo arraypresented to her by a police detective who was investigating the subject homicide. Thereference was brief and inadvertent, and any prejudice to defendant was minimized bythe court's curative instruction (see People v Cruz, 134 AD2d 886, 886 [1987],lv denied 71 NY2d 894 [1988]; see also People v Gonzalez, 295 AD2d264, 265 [2002], lv denied 99 NY2d 535 [2002]; People v Rodriguez,281 AD2d 289 [2001], lv denied 98 NY2d 701 [2002]). In any event, any errorin the admission of that testimony is harmless (see generally People v Crimmins,36 NY2d 230, 241-242 [1975]).
We reject defendant's further contention that the court erred in admitting negativeidentification testimony (see People v Wilder, 93 NY2d 352, 356 [1999]).Defendant and his brother were so similar in appearance that they were referred to as"twins" by those who knew them and, thus, such testimony was relevant and probative inestablishing that the witnesses to this crime could distinguish defendant from his brother.
Defendant further contends that the court erred in denying his motion for a mistrialbased on the court's omission of allegedly critical testimony from a readback given inresponse to a jury note. That contention is not preserved for our review inasmuch asdefense counsel failed to raise that contention before the jury had recommenced itsdeliberations, when any "error could have been cured" (People v Ramirez, 15 NY3d824, 826 [2010]; seePeople v Smart, 100 AD3d 1473, 1474 [2012]). In any event, defendant'scontention is without merit. The record establishes that after defense counsel brought theomission to the court's attention, the court immediately took steps to have that testimonyread to the jury. When the jury announced that it had a verdict before the [*2]supplemental readback could be given, the court, on therecord, outlined a procedure that involved not accepting the verdict until that readbackwas given and then directing the jury to continue its deliberations with the benefit ofhaving heard that supplemental testimony. The court therefore properly followed theprocedures outlined in People v O'Rama (78 NY2d 270, 277-278 [1991]).Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Sconiers,Valentino and Whalen, JJ.