People v. Brooker , 118 A.D.2d 1008 ( 1986 )

Yesawich, Jr., J.

Appeal from a judgment of the County Court of Fulton County (Best, J.), rendered February 14, 1985, upon a verdict convicting defendant of the crimes of assault in the second degree and assault in the third degree.

A raucous beer party hosted by defendant, his wife and his brother in their second-floor apartment prompted a neighbor to complain to the police and eventually culminated in defendant initiating a fight with a police officer; defendant punched the officer in the stomach, kicked him and bit him on the upper leg. A jury convicted defendant of assault in the second and third degrees.

Errors said to have occurred in the course of the trial occasioned this appeal. Initially, defendant argues that a comment on the evidence by the prosecutor, made during a colloquy between the trial court and a juror in response to the jury’s question about the layout of defendant’s apartment, warranted granting defendant’s mistrial application. The court recognized that the prosecutor’s comment was inappropriate, rebuked him and immediately gave the jury curative instructions. Given the collateral nature of the issue and the thoroughness and alacrity of the court’s response, the mistrial motion was properly denied.

Nor did the trial court err in permitting cross-examination of defense witnesses regarding the possible use of drugs at the party. Not only did the defense interpose no objection to this line of questioning, but the suspicion was not baseless for marihuana was found on defendant. Other prejudicial references to extraneous or irrelevant subjects said to have been made during the prosecution’s opening and later in the trial were either remedied by curative instructions or were insubstantial in nature, even when considered cumulatively.

Judgment affirmed. Main, J. P., Mikoll, Yesawich, Jr., and Levine, JJ., concur.