People v. Werts — 206 A.D.2d 872

Majority

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The People of the State of New York, Respondent, v Kenneth Werts, Sr., Appellant.

[616 NYS2d 309]

Judgment unanimously affirmed. Memorandum: Defendant’s contention that County Court erred in permitting the prosecutor to impeach defendant by referring to a prior Family Court order is not preserved for review (see, CPL 470.05 [2]), and we decline to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

We reject defendant’s contention that the court should have declared a mistrial, sua sponte, because of prosecutorial misconduct. The record does not reflect a basis for such a declaration (see, CPL 280.10 [3]; Matter of Texidor v Barlow, 71 AD2d 613 , 614), and the prosecutor’s conduct did not evince a

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pervasive pattern of misconduct so egregious that defendant was deprived of a fair trial (see, People v Galloway, 54 NY2d 396 , 401; People v Plant, 138 AD2d 968 , lv denied 71 NY2d 1031 ).

We conclude that defendant’s conviction is supported by legally sufficient evidence and that the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490 , 495).

Finally, defendant’s sentence is neither harsh nor excessive. (Appeal from Judgment of Cattaraugus County Court, Ward, J.—Sodomy, 1st Degree.) Present—Denman, P. J., Fallon, Wesley, Doerr and Boehm, JJ.

Cases cited

People v. Galloway 54 NY2d 396 N.Y. 1981-11-24 at 401 p. 873
People v. Bleakley 69 NY2d 490 N.Y. 1987-05-07 at 495 p. 873