People v Lopez

People v Lopez 2015 NY Slip Op 06963 Decided on September 29, 2015 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 September 29, 2015
Friedman, J.P., Andrias, Saxe, Gische, Kapnick, JJ.
15708 4896/11

[*1] The People of the State of New York, Respondent,

v

Leif Lopez, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Andrew C. Fine of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), for respondent.

Judgment, Supreme Court, New York County (Analisa Torres, J.), rendered April 17, 2012, as amended April 20, 2012 and May 25, 2012, convicting defendant, after a jury trial, of criminal possession of stolen property in the third degree, grand larceny in the fourth degree (two counts) and scheme to defraud in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 3 to 6 years, unanimously affirmed.

The court properly exercised its discretion in denying defendant's mistrial motion following a single reference, in an unanswered question by the prosecutor, to defendant being visited at "Rikers" by a defense witness. The court provided a sufficient remedy when it struck the reference from the record

and instructed the jury to disregard it (see e.g. People v Dewitt, 126 AD3d 579 [1st Dept 2015]). Moreover, this brief mention of pretrial incarceration was not unduly prejudicial under the circumstances of the case.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 29, 2015

CLERK