Opinion
July 1, 1991
Appeal from the Supreme Court, Queens County (Golia J.).
Ordered that the judgment is affirmed
The defendant contends that his arrest was illegal since there were no exigent circumstances that excused the police from obtaining an arrest warrant before arresting the defendant in his home (see, Payton v New York, 445 U.S. 573). The Payton claim, however, was neither raised at the pretrial hearing nor at trial and is unpreserved for appellate review (CPL 470.05; see, People v Hughes, 138 A.D.2d 523). Nor does the interest of justice compel a reversal on the record before us, which reveals that the defendant consented to the officer's entry into his home (see, People v McCrary, 152 A.D.2d 710).
The court's finding that the photographic array displayed to the victim of the robbery was not suggestive is supported by the evidence adduced at the hearing and will not be disturbed on appeal (see, People v Hinds, 166 A.D.2d 542). Additionally, we find the defendant's claim that the police improperly influenced the complainant's identification of the defendant at the lineup is without merit. An identification is not automatically rendered suggestive by an officer's remark that a subject is in custody (see, People v Rodriguez, 64 N.Y.2d 738; People v Smith, 140 A.D.2d 647). That the witness, prior to the lineup, was informed by a police officer that they "had a guy" did not render the lineup unduly suggestive since there was no suggestion as to which of the lineup participants was the "guy" (see, People v Davis, 151 A.D.2d 494).
We find that the trial court did not err in its denial of the defendant's motion for a mistrial after a portion of an inadmissible statement made by the defendant was inadvertently revealed to the jury during the direct examination of a police officer. It is settled that "the decision whether to abort a criminal trial must rest * * * in the sound discretion of the trial court" (Hall v Potoker, 49 N.Y.2d 501, 505). An appellate court should be hesitant to interfere with the exercise of this discretion, particularly where the decision involves an assessment of the impact of certain events upon a jury, such as the uttering of prejudicial comments (see, People v Banks, 130 A.D.2d 498; see also, People v Beckum, 156 A.D.2d 571). Any prejudice which may have resulted from the officer's remark was alleviated by the trial court's thorough curative instruction (see, People v Cuba, 154 A.D.2d 703).
The sentence imposed was not excessive (see, People v Suitte, 90 A.D.2d 80).
We have examined the defendant's remaining contention and find it to be without merit. Mangano, P.J., Kooper, Rosenblatt and O'Brien, JJ., concur.