People v. Mack

210 A.D.2d 106, 621 N.Y.S.2d 841, 1994 N.Y. App. Div. LEXIS 12678

Opinion

—Judgment, Supreme Court, New York County (Albert Williams, J.), rendered July 9, 1992, convicting defendant, after a jury trial, of riot in the first degree and assault in the third degree, and sentencing him to a term of 6 months imprisonment concurrent with 5 years probation for the riot conviction, to run concurrently with a term of 6 months imprisonment for the assault conviction> unanimously affirmed. The matter is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).

We have affirmed the codefendant’s conviction (People v Oliveras, 204 AD2d 226 lv denied 84 NY2d 830), and find nothing in defendant’s brief that warrants a different result with respect to any issues raised by defendant previously raised by the codefendant.

We find that the verdict against this defendant was not against the weight of the evidence (People v Bleakley, 69 NY2d 490).

The court’s charge on identification was full and complete, and the court was under no obligation to use any particular phraseology.

The court properly denied defendant’s motion for a mistrial based on a romantic encounter between a witness and a juror that led to the latter’s replacement. Through a suitable " 'probing and tactful inquiry’ ”, the court obtained assurances of impartiality from all the remaining jurors, and its finding that the incident caused no taint is entitled to great weight (People v Olin, 186 AD2d 74, 75). Concur—Ellerin, J. P., Kupferman, Rubin and Nardelli, JJ.