Opinion
2398
December 3, 2002.
Judgment, Supreme Court, New York County (Lewis Stone, J.), rendered May 3, 2001, convicting defendant, after a jury trial, of assault in the first degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, to concurrent terms of 15 years and 1 year, respectively, unanimously affirmed.
Annica Jin, for Respondent.
William A. Loeb, for Defendant-appellant.
MAZZARELLI, J.P., ANDRIAS, SAXE, SULLIVAN, ROSENBERGER, JJ.
The court properly exercised its discretion in denying defendant's mistrial motion, made following the prosecutor's improper question to a witness, since the court's thorough curative instructions, which the jury is presumed to have understood and followed, were sufficient to prevent any prejudice (see People v. Santiago, 52 N.Y.2d 865).
The court properly refused to submit assault in the third degree as a lesser included offense. The victim sustained a stab wound that could only have been caused by a knife or other sharp object. Even if fully credited by the jury, defendant's own testimony, taken together with the nature of the victim's injury, established that defendant used a screwdriver or other sharp object that constituted a dangerous instrument (Penal Law § 10.00) in that it was used in a manner that rendered it capable of causing serious physical injury (see People v. Valentin, 255 A.D.2d 126).
We have considered and rejected defendant's other contentions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.