        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

440
KA 12-00167
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VERNON V. SPEARS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, HARRIS BEACH PLLC,
PITTSFORD (KARA E. STODDART OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered October 11, 2011. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree and criminal possession of a weapon in the
third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, criminal possession of a weapon in
the second degree (Penal Law § 265.03 [3]). At trial, a police
officer testified, in violation of Supreme Court’s prior Ventimiglia
ruling, that he became involved in the subject investigation upon
receiving “a call for a gun point robbery.” Defense counsel objected,
and the court struck the testimony, instructed the jury to disregard
it, and excused the jury. Defense counsel then moved for a mistrial
outside the presence of the jury, and the court determined that it
would issue a further curative instruction rather than granting the
motion. The jury returned, and the court again instructed it to
disregard the testimony. Defendant contends on appeal that the court
abused its discretion in denying his motion for a mistrial.

     As an initial matter, we conclude that defendant was not required
to make a further objection or request for relief following the
court’s curative instructions in order to preserve for our review his
contention that the court erred in denying his motion for a mistrial
(see People v Smith, 97 NY2d 324, 329-330; People v Barranco, 174 AD2d
343, 344-345; cf. People v Heide, 84 NY2d 943, 944). To the extent
that prior decisions of this Court, including People v Ielfield (132
AD3d 1298, 1298-1299), suggest a contrary rule, those decisions are
not to be followed. With respect to the merits, however, we conclude
                                 -2-                           440
                                                         KA 12-00167

that the court’s instructions were sufficient to alleviate any
prejudice resulting from the police officer’s single statement (see
People v Allen, 78 AD3d 1521, 1521, lv denied 16 NY3d 827; People v
Young, 55 AD3d 1234, 1236, lv denied 11 NY3d 901; cf. Barranco, 174
AD2d at 344-345), and we note that “[i]t is well settled that ‘the
jury is presumed to have followed’ th[ose] curative instruction[s]”
(Allen, 78 AD3d at 1521).




Entered:   June 10, 2016                       Frances E. Cafarell
                                               Clerk of the Court
