People v. Tyra
| Decision Date | 06 May 2011 |
| Parties | The PEOPLE of the State of New York, Respondent,v.Michael J. TYRA, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
84 A.D.3d 1758
922 N.Y.S.2d 909
2011 N.Y. Slip Op. 03788
The PEOPLE of the State of New York, Respondent,
v.
Michael J. TYRA, Defendant–Appellant.
Supreme Court, Appellate Division, Fourth Department, New York.
May 6, 2011.
[922 N.Y.S.2d 909]
John E. Tyo, Shortsville, for Defendant–Appellant.R. Michael Tantillo, District Attorney, Canandaigua (Neal P. McClelland of Counsel), for Respondent.PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.MEMORANDUM:
[84 A.D.3d 1758] Defendant appeals from a judgment convicting him upon a jury verdict of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193[1][c] [former (i) ] ) and [84 A.D.3d 1759] felony aggravated driving while intoxicated (§ 1192[2–a]; § 1193[1][c] [former (i) ] ). Defendant contends that County Court abused its discretion in denying his motion for a mistrial after a witness testified that defendant was arrested for driving into a house on the day before the incident at issue occurred. We reject that contention ( see generally People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 429 N.E.2d 794). The court instructed the jury to disregard that statement, and “the jury is presumed to have followed” the curative instruction
( People v. Woods, 60 A.D.3d 1493, 1494, 876 N.Y.S.2d 285, lv. denied 12 N.Y.3d 922, 884 N.Y.S.2d 703, 912 N.E.2d 1084; see People v. Cruz, 272 A.D.2d 922, 923, 709 N.Y.S.2d 717, affd. 96 N.Y.2d 857, 730 N.Y.S.2d 29, 754 N.E.2d 1112; People v. Allen, 78 A.D.3d 1521, 911 N.Y.S.2d 528). Thus, any prejudice resulting from that statement was thereby adequately alleviated ( see Allen, 78 A.D.3d 1521, 911 N.Y.S.2d 528; People v. Young, 55 A.D.3d 1234, 1236, 864 N.Y.S.2d 584, lv. denied 11 N.Y.3d 901, 873 N.Y.S.2d 277, 901 N.E.2d 771).
To the extent that defendant further contends that there is legally insufficient evidence to corroborate his admissions to the police pursuant to CPL 60.50, that contention is not preserved for our review ( see People v. Prado, 1 A.D.3d 533, 534, 767 N.Y.S.2d 129, affd. 4 N.Y.3d 725, 790 N.Y.S.2d 418, 823 N.E.2d 824, rearg. denied 4 N.Y.3d 795, 795 N.Y.S.2d 170, 828 N.E.2d 86; People v. Mosca, 294 A.D.2d 938, 741 N.Y.S.2d 780, lv. denied 99 N.Y.2d 538, 752 N.Y.S.2d 599, 782 N.E.2d 577) and, in any event, it is without merit. Defendant's blood alcohol content was .31%, and his truck was parked so that it was in contact with another vehicle. Defendant stated that no one else drove his truck,...
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