Opinion
04-00590.
June 9, 2006.
Appeal from a judgment of the Ontario County Court (James R. Harvey, J.), rendered May 19, 2004. The judgment convicted defendant, upon a jury verdict, of rape in the second degree (two counts), rape in the third degree and endangering the welfare of a child (four counts).
JOHN E. TYO, SHORTSVILLE, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present: Pigott, Jr., P.J., Scudder, Kehoe, Smith and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of rape in the second degree (Penal Law § 130.30), one count of rape in the third degree (§ 130.25 [2]), and four counts of endangering the welfare of a child (§ 260.10 [1]). Contrary to the contention of defendant, County Court did not err in summarily denying his motion to set aside the verdict based upon the unsupported claim that a deputy had spoken to a juror during deliberations ( see People v. Laguer, 195 AD2d 483, 484, lv denied 82 NY2d 756; see also People v. Bryan, 270 AD2d 875, lv denied 95 NY2d 904). Defendant's motion papers did "not contain sworn allegations of all facts essential to support the motion" (CPL 330.40 [e] [ii]), nor did they "allege any ground constituting legal basis for the" relief requested (CPL 330.40 [e] [i]). Hearsay allegations are insufficient to support a claim of juror misconduct ( see People v. Bradley, 258 AD2d 936, lv denied 93 NY2d 922; People v. Hentley, 155 AD2d 392, 393, lv denied 75 NY2d 919).
Contrary to defendant's further contention, reversal is not required as a result of the unprompted testimony of a prosecution witness that she had seen defendant on the television news in connection with a prior accusation of rape. Given the inadvertence and fleeting nature of that testimony ( see People v. Greene, 250 AD2d 547, lv denied 92 NY2d 925; People v. Mosley, 170 AD2d 990, 990-991, lv denied 77 NY2d 964), the court's prompt corrective action was sufficient to alleviate any prejudice ( see People v. Santiago, 52 NY2d 865, 866; Greene, 250 AD2d 547). The jury is presumed to have followed the court's curative instructions ( see People v. Cruz, 272 AD2d 922, 923, affd 96 NY2d 857; People v. Davis, 58 NY2d 1102, 1104). We thus conclude that the court properly denied defendant's request for a mistrial ( see People v. Zanghi, 256 AD2d 1120, lv denied 93 NY2d 881), especially given the overwhelming nature of the evidence against defendant ( see Greene, 250 AD2d 547). Finally, defendant was not deprived of a fair trial by the prosecutor's comments on summation, which were not so inflammatory or egregious as to deny defendant due process ( see People v. Cohen, 302 AD2d 904, 905; People v. Alshoaibi, 273 AD2d 871, 873, lv denied 95 NY2d 960).