| People v Brown |
| 2013 NY Slip Op 03111 [106 AD3d 755] |
| May 1, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v David Brown, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Linda Cantoni of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered February 9, 2010, convicting him of kidnapping in the seconddegree, sex trafficking, promoting prostitution in the third degree, unlawfulimprisonment in the first degree, and assault in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the sentence imposed; as so modified, the judgment is affirmed, andthe matter is remitted to the Supreme Court, Queens County, for resentencing incompliance with Penal Law § 70.10 and CPL 400.20.
The decision whether to declare a mistrial necessarily rests in the broad discretion ofthe trial court, which is best situated to consider all the circumstances, and itsdetermination is entitled to great weight on appeal (see People v Diggs, 25 AD3d 807, 808 [2006]; Peoplev Lagerence, 197 AD2d 593 [1993]). Contrary to the defendant's contention, theSupreme Court providently exercised its discretion in denying his motion for a mistrial,since the reference to defendant's incarceration was brief, counsel failed to object, andcounsel declined the trial court's offer to give a curative instruction (see generallyPeople v Santiago, 52 NY2d 865, 866 [1981]; People v Moore, 148 AD2d754, 754-755 [1989]; People v Banks, 130 AD2d 498, 499 [1987]).
The defendant's contention that the Supreme Court's procedure for handling certainjury notes violated the procedure set forth by the Court of Appeals in People vO'Rama (78 NY2d 270, 277-278 [1991]) is unpreserved for appellate review (see People v Ramirez, 15NY3d 824 [2010]), and we decline to review it in the exercise of our interest ofjustice jurisdiction (see CPL 470.05 [2]). Furthermore, the alleged errors did notconstitute mode of proceedings errors, which would obviate the preservation requirement(see People v Walston, 101AD3d 1156 [2012]; Peoplev Alcide, 95 AD3d 897, 898 [2012], lv granted 19 NY3d 956 [2012];People v Bryant, 82 AD3d1114, 1114 [2011]; cf.People v Lockley, 84 AD3d 836 [2011]).
Although the defendant's contention regarding his adjudication as a persistent felony[*2]offender is unpreserved for appellate review (seePeople v Proctor, 79 NY2d 992 [1992]; People v Flores, 40 AD3d 876, 877 [2007]), we reach it inthe exercise of our interest of justice jurisdiction (see People v Bazemore, 52 AD3d 727 [2008]; People v Murdaugh, 38 AD3d918, 919 [2007]; People v Rosario, 300 AD2d 512, 513 [2002]). TheSupreme Court erred in failing to provide proper notice of the persistent felony offenderhearing pursuant to CPL 400.20 (1)-(4), and to set forth specific reasons supporting itsdetermination to sentence the defendant as a persistent felony offender (see PenalLaw § 70.10 [2]; Peoplev Brothers, 95 AD3d 1227, 1229 [2012]; People v Rivera, 60 AD3d 788 [2009]; People v Bazemore, 52 AD3d727, 727-728 [2008]; People v Murdaugh, 38 AD3d 918, 919-920 [2007]).Accordingly, we vacate the sentence and remit the mater to the Supreme Court, QueensCounty, for resentencing in compliance with Penal Law § 70.10 and CPL 400.20.
In light of our determination, we need not reach the defendant's remainingcontention. Dillon, J.P., Angiolillo, Austin and Hinds-Radix, JJ., concur.