Opinion
March 1, 1994
Appeal from the Supreme Court, New York County (Mary Davis, J.).
The court properly exercised its discretion under CPL 255.20 (1) and (3) in denying defendant's severance motion, finding that there was no good cause shown as required by CPL 200.40 (1) (d) (iii). "[T]he court is not required to sever where the possibility of the codefendant's testifying is merely colorable or speculative" (People v. Bornholdt, 33 N.Y.2d 75, 87, cert denied sub nom. Victory v. New York, 416 U.S. 905), or where there is no showing that defendant will be unduly prejudiced by a joint trial (People v. Mahboubian, 74 N.Y.2d 174, 183). Defendant merely claimed that his codefendant might give exculpatory testimony on his behalf.
The court also properly denied defendant's motion for a mistrial after one of the People's witnesses made reference to a beeper found on defendant's person. As we stated in People v Barranco ( 174 A.D.2d 343, 344), "`[T]he decision to grant or deny a motion for a mistrial is within the trial court's discretion' (People v. Ortiz, 54 N.Y.2d 288, 292, citing Hall v. Potoker, 49 N.Y.2d 501), and its decision will not be disturbed `unless it amounts to an abuse of discretion' (supra, at 292)". The reference to the beeper was not so prejudicial that defendants were denied a fair trial and, thus, they are not entitled to a mistrial (compare, People v. Barranco, supra [testimony regarding "eleven vials" found in vicinity of defendant's arrest constitutes evidence of uncharged crimes]). There were available "less drastic means of alleviating whatever prejudice may have resulted" (People v. Young, 48 N.Y.2d 995, 996). Supreme Court offered to give a curative instruction to countermand the asserted prejudice, but defense counsel declined the offer. The prosecutor stated that he had instructed the witness not to mention the beeper, and there was a sufficient basis to find that the oversight did not imply prosecutorial misconduct.
Defendant's additional claims on appeal are without merit. Closing of the courtroom is permissible where the record demonstrates that testimony of an active undercover officer in open court would compromise his safety (People v. Martinez, 82 N.Y.2d 436). Nor is there any basis to reverse the conviction or remand the case for further proceedings based on allegations of juror misconduct. The alternate jurors were properly discharged, and the court sufficiently inquired into the substance of the allegations, encountering no further objections from defendant or his counsel (see, People v. Simms, 176 A.D.2d 833, 834, lv denied 79 N.Y.2d 832).
Concur — Ellerin, J.P., Asch, Rubin and Nardelli, JJ.