Opinion
KA 03-01160
December 30, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Joseph S. Forma, J.), rendered April 29, 2003. The judgment convicted defendant, upon a jury verdict, of attempted murder in the second degree, reckless endangerment in the first degree and criminal possession of a weapon in the second degree.
Before: Pine, J.P., Hurlbutt, Scudder, Gorski and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25), reckless endangerment in the first degree (§ 120.25), and criminal possession of a weapon in the second degree (§ 265.03 [2]). Defendant failed to preserve for our review his contention that Supreme Court erred in its instructions to the prospective jurors during voir dire ( see People v. Schenk, 294 AD2d 914, lv denied 98 NY2d 702). In any event, his contention is without merit. We reject the further contention of defendant that the court erred in denying his motion for a mistrial based on testimony elicited by the prosecutor from the victim concerning a prior bad act by defendant. The court's curative instruction alleviated any prejudice to defendant resulting from that testimony, and thus the court properly exercised its discretion in denying his motion ( see People v. Robinson, 309 AD2d 1228, 1229, lv denied 1 NY3d 579; People v. Saracina, 298 AD2d 953, 954, lv denied 99 NY2d 564). The court also properly exercised its discretion in admitting a photograph of the victim in evidence because the photograph was relevant in establishing the reckless nature of defendant's conduct ( see generally People v. Wood, 79 NY2d 958, 960; People v. Speicher, 8 AD3d 1008, 1009-1010, lv denied 3 NY3d 681). The verdict is not against the weight of the evidence ( see People v. Bleakley, 69 NY2d 490, 495), and the sentence is not unduly harsh or severe. We have examined defendant's remaining contention and conclude that it is without merit.