| People v Rodriguez |
| 2013 NY Slip Op 08731 [112 AD3d 1344] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v EvansM. Rodriguez, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Joan S. Kohout, A.J.),rendered October 12, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a controlled substance in the first degree and criminal possessionof a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jurytrial of, inter alia, criminal possession of a controlled substance in the first degree (PenalLaw § 220.21 [1]). Contrary to defendant's contention, County Court did not abuseits discretion in denying his motion for a mistrial (see People v DeJesus, 110 AD3d 1480, 1481-1482[2013]). Defendant contends that he was deprived of a fair trial when the court permittedan undercover police officer to testify that he observed defendant speaking to anidentified person known by the officer because of the implication, based upon the workof the officer, that the person to whom defendant was speaking was a drug dealer.Defendant contends that the testimony violated the court's Molineux ruling thatthe People could not present evidence "of a prior sale with the defendant." As apreliminary matter, we note that the record is not clear that the court's ruling applied tothe interaction between defendant and the person identified by the police officer, and wefurther note that the police officer did not testify that he observed a sale but, rather, hetestified only that he observed the two men speaking. In any event, the determinationwhether to grant a motion for a mistrial is within the discretion of the trial court (seePeople v Ortiz, 54 NY2d 288, 292 [1981]; People v Scott, 107 AD3d 1635, 1636 [2013], lvdenied 21 NY3d 1077 [2013]), and such a motion must be granted if an error occursduring the trial that is prejudicial and deprives a defendant of a fair trial (see CPL280.10 [1]; see generally Peoplev Ward, 107 AD3d 1605, 1606 [2013], lv denied 21 NY3d 1078[2013]). That is not the case here. The police officer testified that he was familiar withdefendant, and thus any alleged implication that defendant was a drug dealer based uponthe familiarity of the police officer with the person with whom defendant was speaking isnot so prejudicial as to deprive defendant of a fair trial. Present—Scudder, P.J.,Smith, Peradotto, Lindley and Sconiers, JJ.