| People v Linton |
| 2016 NY Slip Op 03434 |
| Decided on May 3, 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 May 3, 2016
Mazzarelli, J.P., Friedman, Andrias, Moskowitz, Kahn, JJ.
1032 5532/10
v
Michael Linton, Defendant-Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Svetlana M. Kornfeind of counsel), and Cahill Gordon & Reindel LLP, New York (Will A. Page of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico of counsel), for respondent.
Judgment, Supreme Court, New York County (Patricia M. Nunez, J.), rendered October 6, 2011, as amended November 10, 2011, convicting defendant, after a jury trial, of criminal possession of stolen property in the fourth and fifth degrees, and sentencing him, as a second felony offender, to an aggregate term of two to four years, unanimously affirmed.
The court properly exercised its discretion in denying defendant's mistrial motion, made after a police witness revealed uncharged crime evidence that the court had precluded. The court sustained defense counsel's objection, struck the response, recalled the witness to give clarifying testimony favorable to defendant and twice provided curative instructions which the jury is presumed to have followed (see People v Davis, 58 NY2d 1102, 1104 [1983]). These curative actions were sufficient to prevent any possible prejudice (see People v Santiago, 52 NY2d 865 [1981]).
The court also properly exercised its discretion in permitting a police witness to provide background evidence, based on his experience, concerning "lush workers" and police lush worker operations (see People v Bright, 111 AD3d 575 [1st Dept 2013], lv denied 22 NY3d 1137 [2014]). This testimony tended to explain the actions of both defendant and the police surveillance team throughout the course of events, and it was not unduly prejudicial.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 3, 2016
CLERK