Opinion
October 3, 1995
Appeal from the Supreme Court, New York County (Paul Bookson, J.).
While it might have been the better practice for the court to have immediately polled the panel to determine whether any of the prospective jurors had heard defendant's outburst and the court's subsequent admonition to him ( see, People v. Young, 185 A.D.2d 369, lv denied 80 N.Y.2d 935; People v. Mabre, 166 A.D.2d 339, 340, lv denied 77 N.Y.2d 879), under the circumstances, it was not an improvident exercise of discretion for the court to have denied defendant's untimely motions for a mistrial and to have the then-selected jury polled, in light of its curative instructions, both in its opening address and final charge to the jury. The jury is presumed to have followed these instructions ( People v. Davis, 58 N.Y.2d 1102).
Nor was it an improvident exercise of discretion for the court to have denied defendant's application for an in-court lineup or to permit him to sit in the spectator section of the courtroom when the witness made an in-court identification, since the reliability of her identification testimony was never sufficiently cast into doubt and the record provided more than ample evidence establishing defendant's identity as the perpetrator of the crime ( People v. Pearce, 48 N.Y.2d 897; People v. Benjamin, 155 A.D.2d 375, lv denied 75 N.Y.2d 867).
In light of the fact that this was defendant's fourth felony offense and that he was on parole at the time he committed this offense, we find no merit to defendant's contention the sentence imposed was excessive.
Concur — Sullivan, J.P., Wallach, Rubin, Ross and Nardelli, JJ.