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

1184
KA 14-00459
PRESENT: CENTRA, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTOINE GARNER, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DAVID A.
HERATY OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Kenneth F. Case,
J.), rendered May 14, 2013. The judgment convicted defendant, upon a
jury verdict, of strangulation in the second degree and assault 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 strangulation in the second degree (Penal Law
§ 121.12) and assault in the third degree (§ 120.00 [1]). Defendant
failed to preserve for our review his contention that the victim’s
testimony at trial rendered the indictment duplicitous (see People v
Allen, 24 NY3d 441, 449-450; People v Symonds, 140 AD3d 1685, 1686, lv
denied 28 NY3d 937), 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]). Contrary to defendant’s contention, County
Court did not abuse its discretion in denying his request for a
mistrial after it was revealed that the prosecutor’s brother worked
for the same federal agency as the husband of the jury foreperson.
“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 Duell, 124
AD3d 1225, 1228 [internal quotation marks omitted], lv denied 26 NY3d
967). We conclude that, after questioning the juror, the court
properly determined that a mistrial was not warranted (see generally
People v Brantley, 168 AD2d 949, 949, lv denied 77 NY2d 904).

     We reject defendant’s contention that prosecutorial misconduct on
summation deprived him of a fair trial. The prosecutor’s comments
regarding the victim were a fair response to defense counsel’s
                                 -2-                          1184
                                                         KA 14-00459

summation (see People v Walker, 117 AD3d 1441, 1441-1442, lv denied 23
NY3d 1044). We agree with defendant that the prosecutor made an
improper “safe streets” argument (see People v Scott, 60 AD3d 1483,
1484, lv denied 12 NY3d 859). We nevertheless conclude that such
argument and any remaining instances of alleged prosecutorial
misconduct were not so egregious as to deny defendant a fair trial
(see id.).




Entered:   December 23, 2016                   Frances E. Cafarell
                                               Clerk of the Court
