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People v. Whitely

Appellate Division of the Supreme Court of New York, Second Department
Jun 12, 2007
41 A.D.3d 622 (N.Y. App. Div. 2007)

Opinion

No. 2005-01463.

June 12, 2007.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered January 6, 2005, convicting him of attempted robbery in the first degree and attempted robbery in the second degree, upon a jury verdict, and imposing sentence.

Lynn W. L. Fahey, New York, N.Y. (Barry Stendig and Orrick, Herrington Sutcliffe LLP [Mayotta H. Anderson, Jay K. Musoff, and Stephane Valat] of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Anthea H. Bruffee, and Kaye Scholer LLP [Steven R. Wirth] of counsel), for respondent.

Before: Mastro, J.P., Covello, Angiolillo and Dickerson, JJ.


Ordered that the judgment is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant's motion for a mistrial. The decision whether to grant a motion for mistrial rests within the sound discretion of the trial court ( see People v Ortiz, 54 NY2d 288, 292 [1981]), which is in the best position to determine if it is necessary to protect the defendant's right to a fair trial ( see People v Cooper, 173 AD2d 551). Although one of the prosecution's witnesses testified on cross-examination that she knew the defendant "for robbing other people," the Supreme Court struck the testimony, gave a curative instruction, and, upon the defendant's motion for a mistrial, gave further curative instructions ( see People v Hernandez, 11 AD3d 479).

The sentence imposed was not excessive ( see People v Suitte, 90 AD2d 80).


Summaries of

People v. Whitely

Appellate Division of the Supreme Court of New York, Second Department
Jun 12, 2007
41 A.D.3d 622 (N.Y. App. Div. 2007)
Case details for

People v. Whitely

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KENNY WHITELY…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 12, 2007

Citations

41 A.D.3d 622 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 5304
837 N.Y.S.2d 345

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