| People v Spears |
| 2016 NY Slip Op 04526 [140 AD3d 1629] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Vernon V. Spears, Appellant. |
Timothy P. Donaher, Public Defender, Rochester, Harris Beach PLLC, Pittsford(Kara E. Stoddart of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered October 11, 2011. The judgment convicted defendant, upon a jury verdict,of criminal possession of a weapon in the second degree and criminal possession of aweapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]). At trial, a police officer testified, in violation of SupremeCourt's prior Ventimiglia ruling, that he became involved in the subjectinvestigation upon receiving "a call for a gun point robbery." Defense counsel objected,and the court struck the testimony, instructed the jury to disregard it, and excused thejury. Defense counsel then moved for a mistrial outside the presence of the jury, and thecourt determined that it would issue a further curative instruction rather than granting themotion. The jury returned, and the court again instructed it to disregard the testimony.Defendant contends on appeal that the court abused its discretion in denying his motionfor a mistrial.
As an initial matter, we conclude that defendant was not required to make a furtherobjection or request for relief following the court's curative instructions in order topreserve for our review his contention that the court erred in denying his motion for amistrial (see People v Smith, 97 NY2d 324, 329-330 [2002]; People vBarranco, 174 AD2d 343, 344-345 [1991]; cf. People v Heide, 84 NY2d943, 944 [1994]). To the extent that prior decisions of this Court, including People v Ielfield (132 AD3d1298, 1298-1299 [2015]), suggest a contrary rule, those decisions are not to befollowed. With respect to the merits, however, we conclude that the court's instructionswere sufficient to alleviate any prejudice resulting from the police officer's singlestatement (see People vAllen, 78 AD3d 1521, 1521 [2010], lv denied 16 NY3d 827 [2011]; People v Young, 55 AD3d1234, 1236 [2008], lv denied 11 NY3d 901 [2008]; cf. Barranco, 174AD2d at 344-345), and we note that "[i]t is well settled that 'the jury is presumed to havefollowed' th[ose] curative instruction[s]" (Allen, 78 AD3d at 1521).Present—Whalen, P.J., Carni, NeMoyer, Troutman and Scudder, JJ.