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People v. Benloss

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


March 3, 2009

THE PEOPLE, ETC., RESPONDENT,
v.
GARY BENLOSS, APPELLANT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered November 20, 2003, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., DAVID S. RITTER, HOWARD MILLER and RUTH C. BALKIN, JJ.

(Ind. No. 2485/02)

DECISION & ORDER

ORDERED that the judgment is affirmed.

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).

The prosecutor acted improperly in asking a witness if anyone else had been injured in the incident, resulting in testimony that a young girl also was shot. Such testimony was immaterial to the charges against the defendant, was elicited in violation of the prosecutor's obligations under People v Ventimiglia (52 NY2d 350, 359), and was prejudicial to the defense. Nevertheless, the Supreme Court providently exercised its discretion in denying the defendant's request for a mistrial. The prejudice that resulted from the improper testimony was alleviated by the trial court's actions in immediately striking the testimony from the record and providing a curative instruction to the jury (see People v Whitely, 41 AD3d 622, 623; People v Oliver, 19 AD3d 512; People v Kirk, 12 AD3d 619), which the jury is presumed to have followed (see People v Berg, 59 NY2d 294, 299-300; People v Hardy, 22 AD3d 679, 680).

SPOLZINO, J.P., RITTER, MILLER and BALKIN, JJ., concur.

20090303

© 1992-2009 VersusLaw Inc.



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