| People v Ruiz |
| 2019 NY Slip Op 02642 [171 AD3d 486] |
| April 4, 2019 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jose Ruiz, Appellant. |
Justine M. Luongo, The Legal Aid Society, New York (Paul Wiener of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), forrespondent.
Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered July 11,2014, convicting defendant, after a jury trial, of criminal sale of a controlled substance in thethird degree and criminal possession of a controlled substance in the seventh degree, andsentencing him, as a second felony drug offender, to an aggregate term of 3
While an officer's testimony as to the exact amount of cash recovered from a codefendanthad been precluded by the court, the court providently exercised its discretion in denyingdefendant's motion for a mistrial. "[T]he decision to declare a mistrial rests within the sounddiscretion of the trial court, which is in the best position to determine if this drastic remedy istruly necessary to protect the defendant's right to a fair trial" (People v Wakefield, 212AD2d 649, 649 [2d Dept 1995]). Defendant was not denied his right to a fair trial by a briefreference in the officer's testimony to the amount recovered from the codefendant (see Peoplev O'Garro, 293 AD2d 763 [2d Dept 2002], lv denied 98 NY2d 700 [2002]). Thecourt found that it was not done intentionally or in bad faith. Accordingly, the drastic remedy of amistrial was not warranted (see People vGarcia, 110 AD3d 530 [1st Dept 2013]). Further, the court sustained defendant'sobjections and took prompt curative action which sufficed to prevent any prejudice (seePeople v Santiago, 52 NY2d 865 [1981]).
Defendant did not preserve his challenges to the prosecutor's opening statement andsummation, and we decline to review them in the interest of justice. As an alternative holding,we find that there was nothing in these remarks that was so egregious as to warrant reversal(see People v Overlee, 236 AD2d 133 [1st Dept 1997], lv denied 91 NY2d 976[1998]; People v D'Alessandro, 184 AD2d 114, 118-120 [1st Dept 1992], lvdenied 81 NY2d 884 [1993]).
We have considered and rejected defendant's ineffective assistance of counsel claims relatingto the issues we have found to be unpreserved (see People v Benevento, 91 NY2d 708,713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).
We perceive no basis for reducing the sentence. Concur—Friedman, J.P., Gische,Kapnick, Webber, Gesmer, JJ.