People v. Tullock
| Decision Date | 22 March 2017 |
| Docket Number | 2015-00498, Ind. No. 8290/12. |
| Citation | 148 A.D.3d 1061,50 N.Y.S.3d 135 |
| Court | New York Supreme Court — Appellate Division |
| Parties | The PEOPLE, etc., respondent, v. Tion TULLOCK, appellant. |
148 A.D.3d 1061
50 N.Y.S.3d 135
The PEOPLE, etc., respondent,
v.
Tion TULLOCK, appellant.
2015-00498, Ind. No. 8290/12.
Supreme Court, Appellate Division, Second Department, New York.
March 22, 2017.
Jay H. Schwitzman, Brooklyn, NY, for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and John C. Carroll of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ingram, J.), rendered January 6, 2015, convicting him of criminal sex act in the first degree, robbery in the first degree as a sexually motivated felony, criminal possession of a weapon in the fourth degree, and menacing in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not err in denying his motion for a mistrial based on a brief and unsolicited reference to an inadmissible lineup identification during a complainant's testimony. At any time during a trial, upon motion of the defendant, the court must declare a mistrial and order a new trial, "when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives him of a fair trial" (CPL 280.10[1] ). The decision whether to declare a mistrial rests within the sound discretion of the trial court (see People v. Wakefield, 212 A.D.2d 649, 649, 622 N.Y.S.2d 575 ). Here, the court providently exercised its discretion in denying the defendant's motion for a mistrial on
the basis of the complainant's testimony regarding her identification of the defendant in a lineup which had previously been suppressed, where the testimony was elicited inadvertently, and the court struck the testimony from the record, informed the jury that it had found the lineup to be
unconstitutional, and repeatedly directed the jury to disregard the challenged testimony (see People v. Hakmoun, 232 A.D.2d 243, 649 N.Y.S.2d 1 ; People v. Brown, 136 A.D.2d 1, 525 N.Y.S.2d 618 ; see also People v. Gonzalez, 295 A.D.2d 264, 744 N.Y.S.2d 382 ; People v. Diaz, 213 A.D.2d 353, 625 N.Y.S.2d 120 ).
The Sixth Amendment to the United States Constitution guarantees that an accused shall enjoy the right to trial by an impartial jury and to be confronted by adverse witnesses (see Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 17 L.Ed.2d 420 ). Here, the Supreme Court providently exercised its discretion in denying the...
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