Opinion
May 4, 1987
Appeal from the County Court, Nassau County (Winick, J.).
Ordered that the judgment is affirmed.
The hearing court properly admitted the defendant's postarrest statement, as it was spontaneous and not made in response to any police interrogation (see, People v. Lawrence, 116 A.D.2d 664; People v. Bonacorsa, 115 A.D.2d 546, lv denied 67 N.Y.2d 759). The mere fact that the defendant's statement was made immediately after apparently overhearing a remark by the arresting officer made while on the telephone on official business does not foreclose a finding of spontaneity (see, People v. Bonacorsa, supra; People v. Bryant, 87 A.D.2d 873, affd 59 N.Y.2d 786, rearg dismissed 65 N.Y.2d 638). The officer's comment was declarative in nature and could not reasonably be construed as one likely to elicit an incriminating response from the defendant (see, People v. Huffman, 61 N.Y.2d 795; People v. Joyner, 109 A.D.2d 753, lv denied 65 N.Y.2d 696).
Further, the trial court did not err in its denial of the defendant's motion for a mistrial after a portion of an inadmissible statement made by the defendant was inadvertently revealed to the jury during the direct examination of a police officer. It is well settled that "the decision whether to abort a criminal trial must rest, in the first instance, in the sound discretion of the trial court" (see, Hall v. Potoker, 49 N.Y.2d 501, 505; People v. Michael, 48 N.Y.2d 1). An appellate court should be hesitant to interfere with the exercise of this discretion, particularly where the decision involves an assessment of the impact of certain events upon a jury, such as the uttering of prejudicial comments (see, Arizona v Washington, 434 U.S. 497; Hall v. Potoker, supra; Matter of Napoli v. Supreme Ct., 33 N.Y.2d 980, affg 40 A.D.2d 159 on opn at App. Div., cert denied 417 U.S. 947). At bar, the trial court did not abuse its discretion in determining that a mistrial was not warranted. Moreover, the issuance of immediate curative instructions to the jury was more than sufficient to minimize any possible prejudice suffered by the defendant due to the police officer's utterance of a small portion of the defendant's statement, particularly where, as here, the prosecutor cut off the witness before any meaning could be given to those words.
Likewise, the trial court properly denied the defendant's second motion for a mistrial, made after the jury rendered its verdict, which was based on the prosecutor's failure to disclose exculpatory Brady material, to wit, a note in the People's case file indicating that somebody had placed the crime as having occurred at 3:00 P.M. on the date in question rather than 5:00 P.M. as alleged by the prosecution's witnesses. Initially, we note that the declaration of a mistrial after the rendition of the jury's verdict is unauthorized (see, CPL 280.10; People v Collins, 72 A.D.2d 431). In any event, this contention is without merit. While it is axiomatic that a prosecutor is under a duty to turn over, upon the request of defense counsel, evidence favorable to the accused (see, Brady v. Maryland, 373 U.S. 83), it is well settled that evidence is not deemed to be Brady material when the defendant has knowledge of it (see, People v Fein, 18 N.Y.2d 162, cert denied 385 U.S. 649, reh denied
386 U.S. 978; People v. Murphy, 109 A.D.2d 895; People v. Jones, 85 A.D.2d 50). In the instant case, it is clear that the defendant must have been aware of the existence of such evidence since he introduced evidence with respect to the alleged earlier time of the occurrence by way of the defendant's father.
We have reviewed the defendant's remaining contentions and find them to be without merit. Weinstein, J.P., Spatt, Sullivan and Harwood, JJ., concur.