People v. Alexander

291 A.D.2d 328, 737 N.Y.S.2d 620, 2002 N.Y. App. Div. LEXIS 2029

Opinion

—Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered November 21, 1997, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4V2 to 9 years, unanimously affirmed.

The court properly exercised its discretion in denying defendant’s mistrial motion based on the reference in the prosecutor’s opening statement to contemporaneous, uncharged apparent sales, given the court’s curative instruction. This evidence, which would have been admissible in any event, was not unduly prejudicial (see, People v Pressley, 216 AD2d 202, lv denied 86 NY2d 800).

Since defendant requested no further relief after the court struck an officer’s testimony that defendant was found in possession of a crack pipe and residue, his present challenge to that testimony is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find no possibility of prejudice, since the testimony was stricken and since defendant’s crack use was established, in any event, by his own testimony. Concur — Nardelli, J.P., Saxe, Sullivan, Wallach and Friedman, JJ.