People v Marvin Gray

People v Gray 2004 NY Slip Op 03688 [7 AD3d 291] May 6, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 28, 2004

The People of the State of New York, Respondent,
v
Marvin Gray, Appellant.

—[*1]

Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered February 25, 2002, convicting defendant of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 6 to 12 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a term of 5 to 10 years, and otherwise affirmed.

The court properly exercised its discretion in denying defendant's mistrial motion, made after an officer testified during cross-examination about attempting to buy drugs from defendant on a prior occasion. The court prevented any prejudice when it struck the officer's response and gave a prompt curative instruction, which the jury is presumed to have followed (see People v Santiago, 52 NY2d 865 [1981]).

We find the sentence excessive to the extent indicated.

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur—Nardelli, J.P., Saxe, Williams and Friedman, JJ.