| People v Miller |
| 2016 NY Slip Op 01742 |
| Decided on March 10, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on March 10, 2016
Tom, J.P., Andrias, Saxe, Kapnick, JJ.
463 4084/09
v
Donald Miller, Defendant-Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Angie Louie of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Courtney M. Wen of counsel), for respondent.
Judgment, Supreme Court, New York County (Michael J. Obus, J.), rendered July 14, 2010, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of six years, unanimously affirmed.
The court properly denied defendant's suppression motion. The purchasing undercover officer's description of the seller included a very detailed clothing description, and there was sufficient proximity to the officer's observation of defendant coming out of a building he had entered after the sale to make it highly unlikely that the person arrested was not the seller, but an identically dressed innocent person (see People v Coleman, 77 AD3d 591 [1st Dept 2010], lv denied 16 NY3d 829 [2011]). Accordingly, there was probable cause for defendant's arrest.
The court properly exercised its discretion in denying defendant's mistrial motion, made on the ground that a police witness mentioned the recovery of a sum of cash other than buy money from defendant, after the court had precluded such evidence. The court's curative actions, including striking the testimony, were sufficient (see People v Santiago, 52 NY2d 865 [1981]), and the offending testimony was not particularly prejudicial in any event. Defendant's challenges to the content and timing of the court's instruction on disregarding stricken testimony are unpreserved, and we decline to review them in the interest of justice. As an alternative holding, we find no basis for reversal.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 10, 2016
CLERK