People v. Hardy

22 A.D.3d 679, 804 N.Y.S.2d 344

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 2005
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McDonald, J.), rendered October 3, 2002, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant failed to preserve for appellate review his contention that the prosecutor improperly impeached his own witness at trial. After the prosecutor allegedly did so, the defendant asked for and received a curative instruction. The jury is presumed to have followed that instruction (see People v Ross, 262 AD2d 429 [1999]). The defendant neither moved for a mistrial on the ground of improper impeachment nor asked for further curative instructions regarding impeachment at any point in the trial following the issuance of the instruction, and thus failed to preserve the issue for appellate review (see People v Carter, 299 AD2d 418 [2002]).

In any event, given the overwhelming evidence of guilt, any error regarding the People’s impeachment of their own witness is harmless (see People v Crimmins, 38 NY2d 407 [1975]; see also People v Fitzpatrick, 40 NY2d 44, 52 [1976]; People v Pellot, 186 AD2d 158 [1992]).

The defendant’s remaining contention is unpreserved for appellate review and, in any event, is without merit. Prudenti, P.J., H. Miller, Spolzino and Lunn, JJ., concur.