Opinion
March 8, 1996
Appeal from the Supreme Court, Monroe County, Affronti, J.
Present — Lawton, J.P., Fallon, Doerr, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment of conviction arising from the armed robbery of a jewelry store and the murder of two persons during the robbery of a mini-mart about a week later. There is no merit to his contention that Supreme Court erred in denying his request to instruct the jury that they were to decide whether a witness to the murders was an accomplice. No reasonable view of the evidence supports a finding that the witness "participated in the planning or execution of the crimes" committed at the mini-mart ( People v Jones, 73 N.Y.2d 902, 903, rearg denied 74 N.Y.2d 651; see, People v Santana, 82 A.D.2d 784, affd 55 N.Y.2d 673).
The court properly refused to grant a mistrial after a prosecution witness referred to the fact that defendant had previously been convicted of the shootings. The court immediately issued a curative instruction that dissipated any prejudice that may have resulted from the isolated and unsolicited comment ( see, People v Zayas, 202 A.D.2d 324, lv denied 83 N.Y.2d 973; People v Johnson, 124 A.D.2d 1063, lv denied 69 N.Y.2d 713, 951; cf., People v Cruz, 72 A.D.2d 748).
The court also properly denied defendant's motion to sever the consolidated indictments. On a prior appeal, we rejected defendant's contention that the indictments were not properly joined for trial ( People v Young, 195 A.D.2d 1041, lv denied 82 N.Y.2d 809) and, "once the [indictments] were properly joined, the court lacked statutory authority to sever" ( People v Bongarzone, 69 N.Y.2d 892, 895). Lastly, the court did not abuse its discretion in denying defendant's request for a jury viewing of the scene of the shootings. The scene was adequately portrayed in photographs and a videotape was admitted into evidence, and the scene had changed in several respects since the shootings ( see, People v Rao, 107 A.D.2d 720; People v McCurdy, 86 A.D.2d 493, 495-496). Although defendant agreed to limit his request to the unchanged areas, no material issue existed regarding those limited areas and thus, a viewing would not have assisted the jury in deciding a material factual issue ( see, CPL 270.50).