People v. Whitely

41 A.D.3d 622, 837 N.Y.S.2d 345

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 2007
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered January 6, 2005, convicting him of attempted robbery in the first degree and attempted robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant’s motion for a mistrial. The decision whether to grant a motion for mistrial rests within the sound discretion of the trial court (see People v Ortiz, 54 NY2d 288, 292 [1981]), 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 [1991]). Although one of the prosecution’s witnesses testified on cross-examination that she knew the defendant “for robbing other people,” the Supreme Court struck the testimony, gave a curative instruction, and, upon the defendant’s motion for a mistrial, gave further curative instructions (see People v Hernandez, 11 AD3d 479 [2004]).

The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Mastro, J.P., Covello, Angiolillo and Dickerson, JJ., concur.