Opinion
8921 Ind. 4852/13
04-04-2019
The PEOPLE of the State of New York, Respondent, v. Jose RUIZ, Defendant–Appellant.
Justine M. Luongo, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent.
Justine M. Luongo, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent.
Friedman, J.P., Gische, Kapnick, Webber, Gesmer, JJ.
Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered July 11, 2014, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony drug offender, to an aggregate term of 3 ½ years, unanimously affirmed.
While an officer's testimony as to the exact amount of cash recovered from a codefendant had been precluded by the court, the court providently exercised its discretion in denying defendant's motion for a mistrial. "The decision to declare a mistrial rests within the sound discretion of the trial court, which is in the best position to determine if this drastic remedy is necessary to protect the defendant's right to a fair trial" ( People v. Wakefield, 212 A.D.2d 649, 622 N.Y.S.2d 575 [2d Dept. 1995] ). Defendant was not denied his right to a fair trial by a brief reference in the officer's testimony to the amount recovered from the codefendant (see People v. O'Garro, 293 A.D.2d 763, 741 N.Y.S.2d 447 [2d Dept. 2002], lv denied 98 N.Y.2d 700, 747 N.Y.S.2d 419, 776 N.E.2d 8 [2002] ). The court found that it was not done intentionally or in bad faith. Accordingly, the drastic remedy of a mistrial was not warranted (see People v. Garcia, 110 A.D.3d 500, 972 N.Y.S.2d 554 [1st Dept. 2013] ). Further, the court sustained defendant's objections and took prompt curative action which sufficed to prevent any prejudice (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668 [1981] ).
Defendant did not preserve his challenges to the prosecutor's opening statement and summation, and we decline to review them in the interest of justice. As an alternative holding, we find that there was nothing in these remarks that was so egregious as to warrant reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998] ; People v. D'Alessandro, 184 A.D.2d 114, 118–120, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993] ).
We have considered and rejected defendant's ineffective assistance of counsel claims relating to the issues we have found to be unpreserved (see People v. Benevento, 91 N.Y.2d 708, 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998] ; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
We perceive no basis for reducing the sentence.