Opinion
Argued December 11, 1979
Decided January 3, 1980
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, DONALD SULLIVAN, J.
Arthur Birnbaum and Richard S. Fries for appellant.
Mario Merola, District Attorney (Steven J. Greenblatt and Alan D. Marrus of counsel), for respondent.
MEMORANDUM.
The order appealed from should be affirmed. Our examination of the record persuades us that there exists no basis for disturbing the factual finding made by Supreme Court and affirmed by the Appellate Division that the inculpatory statements had been voluntarily made by defendant following an effective waiver of his rights to counsel and to remain silent. Nor can we conclude that the trial court erred in denying defendant's requests for a mistrial based on peripheral references to another criminal act allegedly performed by the defendant, in light of the availability of less drastic means of alleviating whatever prejudice may have resulted. Indeed, in one instance the court instructed the jury to disregard the testimony, and in another instance the court indicated a willingness to consider such a request. Instead, defendant adhered to his unwarranted demand for a mistrial. Upon this appeal, defendant continues to insist that a mistrial was mandated. We disagree.
We have considered defendant's other contentions, and find them to be without merit.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order affirmed.