Appeal from a judgment of the Justice Court of the Village of Croton-On-Hudson, Westchester County (Sam R. Watkins, Jr., J.), rendered September 9, 2009. The judgment convicted defendant, upon a jury verdict, of endangering the welfare of a child. The appeal from the judgment of conviction brings up for review the order denying defendant's motion to suppress evidence.
People v Strugatch (Arthur)
Decided on August 1, 2011
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
ORDERED that the judgment of conviction is affirmed.
Following a jury trial, defendant was convicted of endangering the welfare of a child (Penal Law § 260.10) and acquitted of assault in the third degree (Penal Law § 120.00 ). Defendant contends on appeal that his identification should have been suppressed as the photographic array shown to the complainant was unduly suggestive; that he was denied the effective assistance of counsel; and that the Justice Court improperly denied his motion for a mistrial.
"A photographic display is suggestive when some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection" (People v Miller, 33 AD3d 728, 728-729 ; see also People v Ferguson, 55 AD3d 926, 927 ; People v Wright, 297 AD2d 391 ). Defendant's contention that the photographic array was unduly suggestive because of the delay between the date of the incident and the identification procedure is unpreserved for appellate review as defendant failed to make this specific argument in the Justice Court (see CPL 470.05 ; People v Ferguson, 55 AD3d at 927; People v Carter, 44 AD3d 677, 678 ), and we decline to review it in the interest of justice.
Defendant further contends that the photographic array was unduly suggestive because his photograph depicted him shirtless while the five other men depicted in the array were wearing shirts. The photographic array depicted six bald or balding men, who were close in age, and had similar features and skin tones. Although defendant was the only man not wearing a shirt, that single difference - - when considered together with the similarities in the photographs - - did not create a substantial likelihood that defendant would be singled out for identification (see People v Ferguson, 55 AD3d at 927; People v Carter, 44 AD3d at 678). Likewise, defendant's contention, that the array was unduly suggestive because the police officer had informed the complainant that the suspect's photograph was contained in the photographic array, lacks merit. It is well settled that such an advisement is not fatal to the propriety of the identification procedure (see People v Rodriguez, 64 NY2d 738, 740 ; People v Bourne, 46 AD3d 1101, 1102 ; People v Smith, 140 AD2d 647 ). Defendant also contends that he was denied the effective assistance of counsel because his attorney did not call his minor daughters as witnesses on his behalf. However, defendant failed to show that his attorney's decision not to call his daughters as witnesses was prejudicial to him and was not the result of a well-advised trial strategy (see People v Ford, 46 NY2d 1023 ). In any event, a review of the record indicates that defendant's attorney provided defendant with meaningful representation in accordance with the New York State standard (see NY Const, art I, § 6; People v Ford, 86 NY2d 397 ; People v Johnson, 71 AD3d 1048 ). Moreover, the attorney's performance could not be characterized as either deficient or prejudicial to defendant and, thus, was also in accordance with the federal standard (see US Const Amend VI; Strickland v Washington, 466 US 688 ).
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 necessary to protect a defendant's right to a fair trial (see People v Ortiz, 54 NY2d 288, 292 ; People v Redmon, 81 AD3d 752 ; People v Brown, 76 AD3d 532, 533 ; see also People v Way, 69 AD3d 964, 965 ). We find that the Justice Court did not improvidently exercise its discretion in denying defendant's motion for a mistrial, which was based upon the police officer's testimony that he had known defendant in connection with another incident. While the challenged testimony was improper (see e.g. People v Arafet, 13 NY3d 460, 464-465 ; People v Vails, 43 NY2d 364, 368 ; People v Redmon, 81 AD3d at 752), the curative instruction provided by the court was sufficient to prevent any prejudice from this testimony (see e.g. People v Redmon, 81 AD3d at 752; People v Hernandez, 80 AD3d 540 ; People v Brown, 76 AD3d at 533; People v Way, 69 AD3d at 965; People v Smith, 23 AD3d 415 ).
Accordingly, the judgment of conviction is affirmed.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: August ...