| People v Dubois |
| 2014 NY Slip Op 02606 [116 AD3d 878] |
| April 16, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Marvin Dubois, Appellant. |
—[*1] Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, AmyAppelbaum, and Gamaliel Marrero of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DelGiudice, J.), rendered June 3, 2009, convicting him of assault in the first degree, upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that a policewitness was improperly permitted to identify him as the individual depicted on asurveillance recording of an apartment building near the scene of the crime (seeCPL 470.05 [2]; People vSerrano, 74 AD3d 1104, 1106 [2010]). In any event, the contention is withoutmerit (see People v Magin,1 AD3d 1024, 1025 [2003]; People v Morgan, 214 AD2d 809, 810 [1995];People v Russell, 165 AD2d 327, 332, 336 [1991], affd 79 NY2d 1024[1992]).
Contrary to the defendant's contention, the Supreme Court providently exercised itsdiscretion in denying his motion for a mistrial based on a prosecution witness's briefmention of the defendant's previous arrest record (see People v Santiago, 52NY2d 865, 866 [1981]; Peoplev Ray, 100 AD3d 933, 933-934 [2012]; People v Hicks, 84 AD3d 1402 [2011]; People v Redmon, 81 AD3d752 [2011]). Any possible prejudice to the defendant was ameliorated when theSupreme Court sustained the defendant's objection, struck that portion of the witness'stestimony, and provided a curative instruction to the jury (see People v Santiago,52 NY2d at 866; Hall v Potoker, 49 NY2d 501, 506 [1980]; People vRay, 100 AD3d at 933-934), which the jury is presumed to have followed (see People v Townsend, 100AD3d 1029, 1030 [2012]). If the defendant was of the view that the remedyprovided was insufficient, he should have sought additional curative instructions (seePeople v Santiago, 52 NY2d at 866; People v Miller, 78 AD3d 733, 734 [2010]).
The defendant's contention that the sentence imposed was improperly based on thecrimes of which he was acquitted is unpreserved for appellate review (see CPL470.05 [2]; People v Harris,101 AD3d 900 [2012]) and, in any event, is without merit (see People v Morgan, 27AD3d 579 [2006]; People v Robinson, 250 AD2d 629 [1998]). Moreover,the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).[*2]
Contrary to the defendant's contentions in his prose supplemental brief, the Supreme Court properly instructed the jury regarding theelements of assault in the first degree (see CJI2d[NY] Penal Law § 120.10;People v Gatti, 277 AD2d 1041, 1042 [2000]), and the record indicates that theprosecutor acted diligently and in good faith in producing the surveillance video upon hisdiscovery of it (see CPL 240.20 [1] [g]; [2]; People v Aulet, 221 AD2d281, 283 [1995]).
The defendant's contention in his pro se supplemental brief that the surveillancevideo and the investigating detective's notes regarding it constituted Bradymaterial (see Brady v Maryland, 373 US 83 [1963]) is contradicted by the record.That evidence did not constitute Brady material because it was not exculpatory orimpeaching in nature (seePeople v Hayes, 17 NY3d 46, 50 [2011], cert denied 565 US —,132 S Ct 844 [2011]; People vHunter, 11 NY3d 1, 5 [2008]; People v LaValle, 3 NY3d 88, 109-110 [2004]).Furthermore, the defendant was not prejudiced by the prosecution's delay in turning overthese items, because there was no reasonable probability that the delay contributed to theverdict (see People vNegron, 112 AD3d 741, 744 [2013]).
The defendant's remaining contentions, including the contentions raised in his pro sesupplemental brief, are unpreserved for appellate review, and, in any event, withoutmerit. Mastro, J.P., Balkin, Sgroi and LaSalle, JJ., concur.