Opinion
June 29, 1993
Appeal from the Supreme Court, New York County (Joan B. Carey, J.).
Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), the People overwhelmingly proved defendant's guilt of the crimes charged (People v. Bleakley, 69 N.Y.2d 490). The circumstances surrounding the presentation of testimony by all witnesses were properly placed before the jury. Their determinations of credibility, not unreasonable, will not be disturbed by this Court (People v. Fonte, 159 A.D.2d 346, lv denied 76 N.Y.2d 734).
The trial court properly exercised its discretion in denying defendant's motion for a mistrial based upon brief testimony about "what somebody in the audience may or may not have done" (People v. Ortiz, 54 N.Y.2d 288). The trial court's explicit curative instructions served to cure any possible prejudice to defendant, and it is presumed that the jury understood and followed those instructions (People v. Davis, 58 N.Y.2d 1102, 1104).
As murder is not a material element of the drug conspiracy charges herein, the trial court properly imposed consecutive sentences on those counts (see, Penal Law § 70.25). In all other respects, we perceive no abuse of discretion in sentencing.
We have reviewed defendant's additional arguments including those raised in the supplemental pro se brief and find them to be either unpreserved or without merit.
Concur — Carro, J.P., Ellerin, Rubin and Nardelli, JJ.