People v. Johnson

214 A.D.2d 331, 625 N.Y.S.2d 892, 1995 N.Y. App. Div. LEXIS 3693

Opinion

Judgment, Supreme Court, Bronx County (Irene Duffy, J.), rendered March 29, 1993, convicting defendant, after a jury trial, of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to a term of 1⅔ to 3⅓ years, unanimously affirmed.

The trial court properly exercised its discretion in denying defendant’s mistrial motion made after a prosecution witness, in response to an inquiry by the court during cross-examination, referred to an incriminating statement made by defendant at the time of his arrest. Any prejudice that may have resulted by the statement was cured by the striking of the answer and a prompt curative instruction that each juror assured the court he or she would follow (People v Torres, 199 AD2d 224, lv denied 83 NY2d 859). It must be presumed that the jury followed the instruction not to consider the stricken testimony in their deliberations (People v Berg, 59 NY2d 294, 299-300). Concur—Murphy, P. J., Wallach, Asch, Nardelli and Mazzarelli, JJ.