People v. Colon

Appeal from a judgment of the Supreme Court, Erie County (Joseph S. Forma, J.), rendered April 29, 2003. The judgment convicted defendant, upon a jury verdict, of attempted murder in the second degree, reckless endangerment in the first degree and criminal possession of a weapon in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), reckless endangerment in the first degree (§ 120.25), and criminal possession of a weapon in the second degree (§ 265.03 [2]). Defendant failed to preserve for our review his contention that Supreme Court erred in its instructions to the prospective jurors during voir dire (see People v Schenk, 294 AD2d 914 [2002], lv denied 98 NY2d 702 [2002]). In any event, his contention is without merit. We reject the further contention of defendant that the court erred in denying his motion for a mistrial based on testimony elicited by the prosecutor from the victim concerning a prior bad act by defendant. The court’s curative instruction alleviated any prejudice to defendant resulting from that testimony, and thus the *1199court properly exercised its discretion in denying his motion (see People v Robinson, 309 AD2d 1228, 1229 [2003], lv denied 1 NY3d 579 [2003]; People v Saracina, 298 AD2d 953, 954 [2002], lv denied 99 NY2d 564 [2002]). The court also properly exercised its discretion in admitting a photograph of the victim in evidence because the photograph was relevant in establishing the reckless nature of defendant’s conduct (see generally People v Wood, 79 NY2d 958, 960 [1992]; People v Speicher, 8 AD3d 1008, 1009-1010 [2004], lv denied 3 NY3d 681 [2004]). The verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentence is not unduly harsh or severe. We have examined defendant’s remaining contention and conclude that it is without merit. Present—Pine, J.P., Hurlbutt, Scudder, Gorski and Hayes, JJ.