People v. Young

• Decision Date: 08 March 1996
• Docket Number: No. 1,1
• Citation: 225 A.D.2d 1066,639 N.Y.S.2d 209
• Parties: PEOPLE of the State of New York, Respondent, v. Christopher YOUNG, Appellant. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 209

639 N.Y.S.2d 209

225 A.D.2d 1066

PEOPLE of the State of New York, Respondent, v. Christopher YOUNG, Appellant (Appeal No. 1.)

Supreme Court, Appellate Division Fourth Department.

March 8, 1996.

Edward J. Nowak by Stephen Bird, Rochester, for appellant.

Howard R. Relin by Robert Mastrocola, Rochester, for respondent.

Before LAWTON, J.P., and FALLON, DOERR, BALIO and DAVIS, JJ.

MEMORANDUM:

Defendant appeals from a judgment of conviction arising from the armed robbery of a jewelry store and the murder of two persons during the robbery of a mini-mart about a week later. There is no merit to his contention that Supreme Court erred in denying his request to instruct the jury that they were to decide whether a witness to the murders was an accomplice. No reasonable view of the evidence supports a finding that the witness "participated in the planning or execution of the crimes" committed at the mini-mart (People v. Jones, 73 N.Y.2d 902, 903, 539 N.Y.S.2d 286, 536 N.E.2d 615, rearg. denied 74 N.Y.2d 651, 542 N.Y.S.2d 520, 540 N.E.2d 715; see, People v. Santana, 82 A.D.2d 784, 440 N.Y.S.2d 668, affd. 55 N.Y.2d 673, 446 N.Y.S.2d 944, 431 N.E.2d 305).

The court properly refused to grant a mistrial after a prosecution witness referred to the fact that defendant had previously been convicted of the shootings. The court immediately issued a curative instruction that dissipated any prejudice that may have resulted from the isolated and unsolicited comment (see, People v. Zayas, 202 A.D.2d 324, 609 N.Y.S.2d 9, lv. denied 83 N.Y.2d 973, 616 N.Y.S.2d 26, 639 N.E.2d 766; People v. Johnson, 124 A.D.2d 1063, 508 N.Y.S.2d 728, lv. denied 69 N.Y.2d 713, 512 N.Y.S.2d 1039, 504 N.E.2d 407, rearg. denied 69 N.Y.2d 951, 516 N.Y.S.2d 1034, 509 N.E.2d 369; cf., People v. Cruz, 72 A.D.2d 748, 421 N.Y.S.2d 263).

The court also properly denied defendant's motion to sever the consolidated indictments. On a prior appeal, we rejected defendant's contention that the indictments were not properly joined for trial (People v. Young, 195 A.D.2d 1041, 601 N.Y.S.2d 878, lv. denied 82 N.Y.2d 809, 604 N.Y.S.2d 945, 624 N.E.2d 1040) and, "once the [indictments] were properly joined, the court lacked statutory authority to sever" (People v. Bongarzone, 69 N.Y.2d 892, 895, 515 N.Y.S.2d 227, 507 N.E.2d 1083). Lastly, the court did not abuse its discretion in denying defendant's request for a jury viewing of the scene of the shootings. The scene was adequately portrayed in photographs and a videotape was admitted...