People v. Borden

• Decision Date: 30 December 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Brian BORDEN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09719
90 A.D.3d 1652
935 N.Y.S.2d 810

The PEOPLE of the State of New York, Respondent,
v.
Brian BORDEN, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 30, 2011.

[935 N.Y.S.2d 810]

Patricia M. McGrath, Lockport, for Defendant–Appellant.

Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Respondent.

[935 N.Y.S.2d 811]

PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.

MEMORANDUM:

[90 A.D.3d 1652] Defendant appeals from a judgment convicting him following a jury trial of, inter alia, three counts of criminal sexual act in the first degree (Penal Law § 130.50[1] ), arising from his sexual assault of a woman whom he grabbed off the street and dragged into an alley. We reject defendant's contention that County Court erred in denying his motion for a mistrial based on the testimony of a police detective at trial that defendant asked for an attorney when questioned by the police. Although that testimony was improper, it is clear from the record that it was not intentionally elicited by the prosecutor ( cf. People v. Morrice, 61 A.D.3d 1390, 1391, 877 N.Y.S.2d 547). In addition, the court promptly sustained defense counsel's objections and gave appropriate curative instructions. Under the circumstances of this case, we conclude that the court's curative instructions were sufficient to alleviate any prejudice to defendant as a result of the detective's unsolicited testimony ( see People v. Pierre, 37 A.D.3d 1172, 829 N.Y.S.2d 386, lv. denied 8 N.Y.3d 989, 838 N.Y.S.2d 492, 869 N.E.2d 668; see also People v. Nicholas, 286 A.D.2d 861, 862, 731 N.Y.S.2d 99, affd. 98 N.Y.2d 749, 751 N.Y.S.2d 820, 781 N.E.2d 884; People v. Clark, 281 A.D.2d 947, 725 N.Y.S.2d 154, lv. denied 96 N.Y.2d 860, 730 N.Y.S.2d 34, 754 N.E.2d 1117).

Defendant's further contention that he was denied a fair trial [90 A.D.3d 1653] based on the prosecutor's comment during summation regarding the failure of defendant to testify is not preserved for our review, inasmuch as defense counsel requested either a mistrial or a curative instruction with respect to that comment and made no further objection when the requested instruction was given. “Under [those] circumstances, the curative instruction[ ] must be deemed to have corrected the error to the defendant's satisfaction” ( People v. Heide, 84 N.Y.2d 943, 944, 620 N.Y.S.2d 814, 644 N.E.2d 1370).

Finally, we reject defendant's contention...