People v. Hunter

265 A.D.2d 503, 696 N.Y.S.2d 864, 1999 N.Y. App. Div. LEXIS 10385

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 1999
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered November 15, 1995, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Tomei, J.), of that branch of the defendant’s omnibus motion which was to suppress a written statement made by him to the police.

Ordered that the judgment is affirmed.

The hearing court did not err in denying that branch of the defendant’s omnibus motion which was to suppress a written statement made by him to the police, since the credible evidence established that it was given after he knowingly and intelligently waived his Miranda rights (see, People v Padilla, 133 AD2d 353, 354; People v Croney, 121 AD2d 558, 559).

The denial of the defendant’s request for a mistrial after the People’s opening statement was not an improvident exercise of discretion (see, People v Young, 48 NY2d 995). Whether to grant a request for a mistrial rests within the sound discretion of the trial court (see, People v Ortiz, 54 NY2d 288), which is in the best position to determine if it is necessary to protect the defendant’s right to a fair trial (see, People v Cooper, 173 AD2d 551, 552). Here, the court’s limiting instruction alleviated any prejudice that may have resulted from the prosecutor’s improper comment (see, People v Young, supra). Santucci, J. P., Joy, Friedmann and Goldstein, JJ., concur.