People v. Terry

Appellate Division of the Supreme Court of New York

People v. Terry

219 A.D.2d 529, 631 N.Y.S.2d 677, 1995 N.Y. App. Div. LEXIS 9497

Appellate Division of the Supreme Court of the State of New York·Decided September 21, 1995·Published·Cited by 5 cases

Opinion

Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered July 19, 1993, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

Defendant’s motion for a mistrial based upon a violation of the trial court’s Sandoval ruling was properly denied. Defendant correctly asserts that the prosecutor’s question about whether he had pleaded guilty to a misdemeanor assault charge was a direct violation of the Sandoval ruling. However, the granting of a mistrial was not required, since defendant was not unduly prejudiced: he never answered the question, which was stricken, and the court promptly instructed the jury that a question never constitutes evidence (see, People v Brown, 195 AD2d 419, 420, lv denied 82 NY2d 804). Moreover, the prior assault conviction mentioned by the prosecutor was not similar to the charge for which defendant was on trial.

We have considered defendant’s remaining contentions and find they do not warrant corrective action. Concur — Rosenberger, J. P., Rubin, Asch, Williams and Mazzarelli, JJ.

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Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered July 19, 1993, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

Defendant’s motion for a mistrial based upon a violation of the trial court’s Sandoval ruling was properly denied. Defendant correctly asserts that the prosecutor’s question about whether he had pleaded guilty to a misdemeanor assault charge was a direct violation of the Sandoval ruling. However, the granting of a mistrial was not required, since defendant was not unduly prejudiced: he never answered the question, which was stricken, and the court promptly instructed the jury that a question never constitutes evidence (see, People v Brown, 195 AD2d 419, 420, lv denied 82 NY2d 804). Moreover, the prior assault conviction mentioned by the prosecutor was not similar to the charge for which defendant was on trial.

We have considered defendant’s remaining contentions and find they do not warrant corrective action. Concur — Rosenberger, J. P., Rubin, Asch, Williams and Mazzarelli, JJ.

People v. Terry, 219 A.D.2d 529, 631 N.Y.S.2d 677, 1995 N.Y. App. Div. LEXIS 9497 (N.Y. Ct. App. 1995).

Pincite

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Opinion

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