People v. Pantoliano

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered March 21, 1983, convicting him of murder in the second degree (felony murder), upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Although the jury acquitted the defendant of the two counts of robbery in the first degree with which he was charged, the trial court’s charge to the jury coupled with the evidence which demonstrated an attempted robbery by the defendant were sufficient for the jury to have found the defendant guilty of felony murder (see, People v Tucker, 55 NY2d 1; People v Murray, 92 AD2d 617). The Trial Judge’s denial of the defendant’s motion for a mistrial after two brief incidents involving courtroom spectators was not improper, in view of the Trial Judge’s observations that the first incident did not distract the jury from paying careful attention to the opening statements and the curative instructions given after the second incident (see, People v Ortiz, 54 NY2d 288, 292; People v Santiago, 52 NY2d 865, 866; People v Terry, 109 AD2d 807; People v Onofrietti, 858 109 AD2d 896, 897). Thompson, J. P., Lawrence, Kunzeman and Sullivan, JJ., concur.