Opinion
February 14, 1995
Appeal from the Supreme Court, Nassau County (Thorp, J.).
Ordered that the judgment is affirmed.
It is well settled that 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 truly necessary to protect the defendant's right to a fair trial (see, People v. Cooper, 173 A.D.2d 551). Shortly after the commencement of deliberations, the jury foreman informed the trial court that he had relayed to the rest of the jurors a conversation which he had overheard during lunch, the gist of which was that someone presently on trial at the court had already been convicted of a crime. The trial court questioned each juror separately, and it became apparent that several jurors were under the impression that the defendant was the subject of the rumor. However, after asking whether the rumor would affect the deliberations, the court expressly determined that each juror would be capable of rendering an impartial verdict based solely upon the evidence presented during the trial. Under these circumstances, we find that the defendant was not deprived of a fair trial and that his motion for a mistrial was properly denied (see, People v Rivera, 26 N.Y.2d 304, 307-308; People v. Sher, 24 N.Y.2d 454, 457, cert denied 396 U.S. 837; People v. Genovese, 10 N.Y.2d 478; People v. Cruz, 160 A.D.2d 893; People v. Sullivan, 167 A.D.2d 564; People v. Lyon, 134 A.D.2d 909; People v. Costello, 104 A.D.2d 947; People v. Goldfeld, 60 A.D.2d 1, 9-10).
The defendant's reliance on People v. Gardella ( 55 A.D.2d 607) is misplaced. In that case, the fact that the jury had learned of the defendant's prior conviction for murder did not come to light until after the verdict had been rendered. Therefore, there could be no inquiry to determine whether the jurors could reach an impartial verdict based upon the evidence presented.
The defendant's motion pursuant to CPL 330.30 to set aside the verdict, which was presented orally at the time of sentencing, was properly denied by the trial court (see, CPL 330.40; People v. Williams, 134 A.D.2d 304).
The defendant contends in his supplemental pro se brief that he was substantially prejudiced by the People's delay in turning over to the defense a notebook of a police officer containing prior statements of the complaining witnesses. As the defendant requested no remedial measures at the trial, the issue is unpreserved for appellate review. In any event, the defendant has not demonstrated that he was substantially prejudiced by the delay in producing the notebook (see, People v. Martinez, 71 N.Y.2d 937, 940). Ritter, J.P., Pizzuto, Friedmann and Goldstein, JJ., concur.