People v. Benloss

60 A.D.3d 686, 877 N.Y.S.2d 558

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 2009
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered November 20, 2003, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

The prosecutor acted improperly in asking a witness if anyone else had been injured in the incident, resulting in testimony that a young girl also was shot. Such testimony was immaterial to the charges against the defendant, was elicited in violation of the prosecutor’s obligations under People v Ventimiglia (52 NY2d 350, 359 [1981]), and was prejudicial to the defense. Nevertheless, the Supreme Court providently exercised its discretion in denying the defendant’s request for a mistrial. The prejudice that resulted from the improper testimony was alleviated by the trial court’s actions in immediately striking the testimony from the record and providing a curative instruction to the jury (see People v Whitely, 41 AD3d 622, 623 [2007]; People v Oliver, 19 AD3d 512 [2005]; People v Kirk, 12 AD3d 619 [2004]), which the jury is presumed to have followed (see People v Berg, 59 NY2d 294, 299-300 [1983]; People v Hardy, 22 AD3d 679, 680 [2005]). Spolzino, J.P., Ritter, Miller and Balkin, JJ., concur.