Opinion
Submitted May 14, 2001
June 11, 2001
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.), rendered June 25, 1999, convicting him of criminal sale of a controlled substance in or near school grounds, upon a jury verdict, and imposing sentence.
Daniel L. Greenberg, New York, N.Y. (Judith Stern of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Michael Gore of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, STEPHEN G. CRANE, JJ.
ORDERED that the judgment is affirmed.
Following the testimony of the first witness, the trial court was notified that the court clerk received a telephone call from a man who claimed to be a juror, and who stated that he knew the defendant and was afraid to come forward. The caller hung up when the court clerk offered to let him speak to the Trial Judge. When the trial court informed counsel of this, the defense counsel moved for a mistrial, contending that the jury as a whole was tainted and that an inquiry would only cause the juror to remain silent regarding any bias. Over the defendant's objection, the trial court conducted an inquiry and determined that none of the jurors was the caller. The trial court denied the defendant's motion.
The defendant's contentions concerning the sufficiency of the trial court's inquiry of the jury are unpreserved for appellate review (see, CPL 470.05; People v. Torres, 80 N.Y.2d 944; People v. Fernandez, 269 A.D.2d 167; People v. Jones, 260 A.D.2d 647). In any event, we find that the inquiry was sufficient to protect the defendant's right to a fair trial (see, People v. Buford, 69 N.Y.2d 290; People v. Blyden, 55 N.Y.2d 73).
Moreover, "the decision to declare a mistrial rests within the sound discretion of the trial court which is in the best position to determine if this drastic remedy is truly necessary to protect the defendant's right to a fair trial" (People v. Williams, 264 A.D.2d 745, 746; see, People v. Rice, 75 N.Y.2d 929; People v. Cooper, 173 A.D.2d 551). The defendant failed to establish conduct inside or outside the courtroom that was prejudicial to him and deprived him of a fair trial (see, CPL 280.10). Therefore, the Supreme Court properly declined to declare a mistrial.
The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80).