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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KENNY WHITELY, Appellant.

Ordered that the judgment is affirmed.

The Supreme Court providently exercised its discretion in denying the defendant's motion for a mistrial. The decision whether to grant a motion for mistrial rests within the sound discretion of the trial court ( see People v Ortiz, 54 NY2d 288, 292 [1981]), which is in the best position to determine if it is necessary to protect the defendant's right to a fair trial ( see People v Cooper, 173 AD2d 551). Although one of the prosecution's witnesses testified on cross-examination that she knew the defendant "for robbing other people," the Supreme Court struck the testimony, gave a curative instruction, and, upon the defendant's motion for a mistrial, gave further curative instructions ( see People v Hernandez, 11 AD3d 479).

The sentence imposed was not excessive ( see People v Suitte, 90 AD2d 80).

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PEOPLE v. WHITELY
(Jun 12, 2007)