Opinion
October 3, 1995
Appeal from the Supreme Court, New York County (Patricia Williams, J.).
There is no merit to defendant's claim that a mistrial should have been declared when a prosecution witness stated, in response to a defense question, that he had seen defendant's parole papers. The comment was fleeting, and any prejudice was dispelled by the court's sustaining of defense counsel's objection to the witness's answer and instruction to the jury to disregard it ( People v. Owens, 214 A.D.2d 480; People v. Maisonet, 209 A.D.2d 297, 298, lv denied 85 N.Y.2d 864). Nor does the record support defendant's claim, which might have been better developed by a postjudgment motion pursuant to CPL 440.10 ( see, People v. Love, 57 N.Y.2d 998, 1000), that a court officer was present in the jury room during deliberations involving experimentation with the gun seized from defendant upon his arrest, or that such presence, assuming it to be a fact, was other than ministerial in nature, and therefore improper (CPL 310.10; People v. Buxton, 192 A.D.2d 289, lv denied 82 N.Y.2d 752). We have reviewed defendant's claim that he was denied a fair trial by the prosecutor's summation, and find it unpreserved as a matter of law and in any event without merit.
Concur — Murphy, P.J., Wallach, Ross, Nardelli and Tom, JJ.