Opinion
May 31, 1996
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Denman, P.J., Green, Lawton, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that reversal is required because the People failed to include on their prospective witness list a witness who testified at trial. Because that contention was not properly raised at trial, it has not been preserved for our review ( see, People v. Graves, 85 N.Y.2d 1024; People v. Stephens, 84 N.Y.2d 990, 991-992; People v Stewart, 81 N.Y.2d 877, 878-879). Likewise unpreserved for our review is defendant's contention that Supreme Court committed reversible error when it failed to ask the jurors whether they knew or were related to that witness ( see, CPL 470.05; People v. Graves, supra; People v. Stephens, supra). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).
Defendant further contends that the court erred in denying his motion for a mistrial following the witness's testimony that defendant stated before the robbery, "I'm going to rob somebody because I need some quick money before I go to jail". We disagree. The reference to "robbing somebody" was properly received as an admission inconsistent with defendant's innocence ( see, People v. Harris, 148 A.D.2d 469). The unsolicited reference to defendant going to jail, however, was inadmissible ( see, People v. Kirkland, 177 A.D.2d 946, lv denied 79 N.Y.2d 859; see also, People v. Guise, 179 A.D.2d 1027, lv denied 79 N.Y.2d 1001). Although the court denied the motion for a mistrial, it gave a curative instruction that the jury was to disregard completely the witness's reference to defendant going to jail, thereby alleviating any prejudice ( see, e.g., People v. Brooks, 213 A.D.2d 999, lv denied 85 N.Y.2d 970; People v. Guise, supra; People v. Johnson, 124 A.D.2d 1063, 1064, lv denied 69 N.Y.2d 951). Thus, we conclude that the court did not abuse its discretion in denying defendant's motion ( see, People v. Young, 48 N.Y.2d 995, 996, rearg dismissed 60 N.Y.2d 644; People v. Guise, supra; People v. Kirkland, supra; People v. Mosley, 170 A.D.2d 990, 991, lv denied 77 N.Y.2d 964).
We have reviewed defendant's remaining contentions and conclude that they are without merit.