People v. Miller — 41 N.Y. 857

Majority

p. 857

The People of the State of New York, Respondent, v John Miller, Appellant.

Argued January 13, 1977;

decided February 15, 1977

p. 858

Patrick M. Wall for appellant.

Mario Merola, District Attorney (Stephen R. Bookin of counsel), for respondent.

Memorandum. The order of the Appellate Division is affirmed.

It was flagrant misconduct for the trial prosecutor to elicit the response that the defendant was the source of the heroin for the possession of which the witness Williams had been convicted in an unrelated case. In view of the Trial Judge’s prompt curative instructions to the jury and trial counsel’s express declination to move for a mistrial, the error, if that it be, was waived and a deliberate choice made to proceed with the trial. We have reviewed the other matters raised by the defendant and find them to either lack merit or constitute harmless error.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed in a memorandum.