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

714
KA 14-00107
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MORRIS H. WHITE, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered April 24, 2013. The judgment convicted
defendant, upon a jury verdict, of criminal sale of a controlled
substance in the third degree and criminal possession of a controlled
substance 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,
following a jury trial, of criminal sale of a controlled substance in
the third degree (Penal Law § 220.39 [1]) and criminal possession of a
controlled substance in the third degree (§ 220.16 [1]). The evidence
at trial established that defendant sold five pills containing
oxycodone to a police informant in the City of Canandaigua. We reject
defendant’s initial contention that County Court should have granted
his motion for a mistrial during voir dire based on comments about
defendant’s sister made by a prospective juror who was later excused
for cause. “It is well settled that the decision to declare a
mistrial rests within the sound discretion of the trial court, which
is in the best position to determine if this drastic remedy is truly
necessary to protect the defendant’s right to a fair trial” (People v
Lewis, 247 AD2d 866, 866, lv denied 93 NY2d 1021 [internal quotation
marks omitted]; see People v Ortiz, 54 NY2d 288, 292). Here, we
conclude that, inasmuch as the prospective juror’s comments did not
relate directly to defendant and were not so prejudicial as to deprive
him of a fair trial, the court did not abuse its discretion in denying
the motion for a mistrial (see generally Ortiz, 54 NY2d at 292; People
v Boler, 4 AD3d 768, 768, lv denied 2 NY3d 761). Defendant failed to
preserve for our review his further contention that he was deprived of
a fair trial because a police detective identified defendant’s sister
in the courtroom during the trial (see People v Angona, 119 AD3d 1406,
                                 -2-                           714
                                                         KA 14-00107

1409, lv denied 25 NY3d 987), and we decline to exercise our power to
review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).

     We reject defendant’s contention that the court should have
granted his motion for a mistrial after a police detective testified
that defendant, upon his arrest, asked to work as a police informant.
The record establishes that the testimony was a “ ‘surprise to
everyone’ ” and was not the result of any “ ‘willful misconduct by the
People’ ” (People v Lucie, 49 AD3d 1253, 1255, lv denied 10 NY3d 936;
see People v Jacobs, 37 AD3d 868, 870, lv denied 9 NY3d 923).
Moreover, the court limited the prejudice to defendant by sustaining
his objection, striking the testimony, and providing a curative
instruction (see Lucie, 49 AD3d at 1255; People v Mims, 278 AD2d 822,
823, lv denied 96 NY2d 832).

      Defendant failed to preserve for our review his contention that
he was deprived of a fair trial by incidents of prosecutorial
misconduct (see CPL 470.05 [2]; People v Swan, 126 AD3d 1527, 1527).
In any event, we conclude that none of the alleged misconduct by the
prosecutor was so egregious as to deprive defendant of a fair trial
(see People v Jackson, 108 AD3d 1079, 1079-1080, lv denied 22 NY3d
997).

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
