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

259
KA 10-02423
PRESENT: SMITH, J.P., SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICKY PROCTOR, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered December 10, 2010. The judgment
convicted defendant, upon a jury verdict, of murder in the second
degree and criminal possession of a weapon in the second 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, murder in the second degree (Penal
Law § 125.25 [1]). We reject defendant’s contention that Supreme
Court erred in denying his motion for a mistrial after a witness
testified that she had seen defendant’s photograph in a photo array
presented to her by a police detective who was investigating the
subject homicide. The reference was brief and inadvertent, and any
prejudice to defendant was minimized by the court’s curative
instruction (see People v Cruz, 134 AD2d 886, 886, lv denied 71 NY2d
894; see also People v Gonzalez, 295 AD2d 264, 265, lv denied 99 NY2d
535; People v Rodriguez, 281 AD2d 289, lv denied 98 NY2d 701). In any
event, any error in the admission of that testimony is harmless (see
generally People v Crimmins, 36 NY2d 230, 241-242).

     We reject defendant’s further contention that the court erred in
admitting negative identification testimony (see People v Wilder, 93
NY2d 352, 356). Defendant and his brother were so similar in
appearance that they were referred to as “twins” by those who knew
them and, thus, such testimony was relevant and probative in
establishing that the witnesses to this crime could distinguish
defendant from his brother.

     Defendant further contends that the court erred in denying his
motion for a mistrial based on the court’s omission of allegedly
                                 -2-                           259
                                                         KA 10-02423

critical testimony from a readback given in response to a jury note.
That contention is not preserved for our review inasmuch as defense
counsel failed to raise that contention before the jury had
recommenced its deliberations, when any “error could have been cured”
(People v Ramirez, 15 NY3d 824, 826; see People v Smart, 100 AD3d
1473, 1474). In any event, defendant’s contention is without merit.
The record establishes that after defense counsel brought the omission
to the court’s attention, the court immediately took steps to have
that testimony read to the jury. When the jury announced that it had
a verdict before the supplemental readback could be given, the court,
on the record, outlined a procedure that involved not accepting the
verdict until that readback was given and then directing the jury to
continue its deliberations with the benefit of having heard that
supplemental testimony. The court therefore properly followed the
procedures outlined in People v O’Rama (78 NY2d 270, 277-278).
Finally, the sentence is not unduly harsh or severe.




Entered:   March 22, 2013                      Frances E. Cafarell
                                               Clerk of the Court
