People v. Brooks

295 A.D.2d 140, 742 N.Y.S.2d 832, 2002 N.Y. App. Div. LEXIS 5836

Opinion

—Judgment, Supreme Court, New York County (Arlene Silverman, J.), rendered June 20, 2000, convicting defendant, after a jury trial, of robbery in the first degree and burglary in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 22 years to life, unanimously affirmed.

The court properly exercised its discretion in denying defendant’s request for a mistrial made on the basis of a witness’s unsolicited reference to uncharged crimes. The offending testimony was brief and limited, and the court took prompt curative action by immediately striking the testimony and instructing the jury to disregard it (see, People v Santiago, 52 NY2d 865; People v Young, 48 NY2d 995). The jury is presumed to have followed the court’s instruction, which prevented any prejudice to defendant (People v Davis, 58 NY2d 1102, 1104).

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see, People v Rosen, 96 NY2d 329, cert denied 534 US 899). Concur—Tom, J.P., Andrias, Saxe, Ellerin and Wallach, JJ.