People v. Carrero

Appellate Division of the Supreme Court of New York

People v. Carrero

216 A.D.2d 148, 629 N.Y.S.2d 8, 1995 N.Y. App. Div. LEXIS 6606

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 22, 1995

StatusPublished

Cited by2 cases

This text of 216 A.D.2d 148 (People v. Carrero) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Carrero, 216 A.D.2d 148, 629 N.Y.S.2d 8, 1995 N.Y. App. Div. LEXIS 6606 (N.Y. Ct. App. 1995).

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Opinion

Judgment Supreme Court, New York County (Jay Gold, J.), rendered August 18, 1993, 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 41/2 to 9 years, unanimously affirmed.

Since the evidence showed that defendant personally exchanged drugs for money, the belatedly-disclosed fact that defendant handed the buy money to an unapprehended accomplice was merely evidentiary and had no effect on the "theory” of prosecution (People v Duncan, 46 NY2d 74, 79-80, cert denied 442 US 910), even though it tended to explain the disappearance of the buy money. Even assuming that defendant was unfairly and prejudicially surprised by the revelation, during trial, of the existence and role of the accomplice, which had been omitted from the People’s bill of particulars, the court’s generous offer of a mistrial was more than enough to rectify the surprise, and by declining that offer, and insisting only upon the unduly drastic remedy of striking all testimony about the accomplice, which would have deprived the People of the opportunity to explain the absence of the buy money, defendant waived any claim that there should be a retrial (see, People v Rice, 75 NY2d 929, 932-933; People v Seeley, 199 AD2d 7, 8, lv denied 83 NY2d 810; People v Cox, 188 AD2d 316, 317, lv denied 81 NY2d 969).

We decline to review in the interest of justice defendant’s challenges to the prosecutor’s summation, which are unpreserved due to defendant’s failure to request a mistrial or further corrective action. We likewise decline to review defendant’s similarly unpreserved claim that he was denied a fair trial by the prosecutor’s unrecorded outburst during a read-back, and we also note that this claim is unreviewable due to lack of a sufficient record (see, People v Pizarro, 190 AD2d 634, lv denied 81 NY2d 1018). Concur—Rosenberger, J. P., Ellerin, Kupferman, Tom and Mazzarelli, JJ.

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Judgment Supreme Court, New York County (Jay Gold, J.), rendered August 18, 1993, 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 41/2 to 9 years, unanimously affirmed.

Since the evidence showed that defendant personally exchanged drugs for money, the belatedly-disclosed fact that defendant handed the buy money to an unapprehended accomplice was merely evidentiary and had no effect on the "theory” of prosecution (People v Duncan, 46 NY2d 74, 79-80, cert denied 442 US 910), even though it tended to explain the disappearance of the buy money. Even assuming that defendant was unfairly and prejudicially surprised by the revelation, during trial, of the existence and role of the accomplice, which had been omitted from the People’s bill of particulars, the court’s generous offer of a mistrial was more than enough to rectify the surprise, and by declining that offer, and insisting only upon the unduly drastic remedy of striking all testimony about the accomplice, which would have deprived the People of the opportunity to explain the absence of the buy money, defendant waived any claim that there should be a retrial (see, People v Rice, 75 NY2d 929, 932-933; People v Seeley, 199 AD2d 7, 8, lv denied 83 NY2d 810; People v Cox, 188 AD2d 316, 317, lv denied 81 NY2d 969).

We decline to review in the interest of justice defendant’s challenges to the prosecutor’s summation, which are unpreserved due to defendant’s failure to request a mistrial or further corrective action. We likewise decline to review defendant’s similarly unpreserved claim that he was denied a fair trial by the prosecutor’s unrecorded outburst during a read-back, and we also note that this claim is unreviewable due to lack of a sufficient record (see, People v Pizarro, 190 AD2d 634, lv denied 81 NY2d 1018). Concur—Rosenberger, J. P., Ellerin, Kupferman, Tom and Mazzarelli, JJ.

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Bluebook (online)

216 A.D.2d 148, 629 N.Y.S.2d 8, 1995 N.Y. App. Div. LEXIS 6606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-carrero-nyappdiv-1995.

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