People v. Straker

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dabiri, J.), rendered June 11, 1997, convicting her of manslaughter in the first degree, assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The trial court’s denial of the defendant’s request for a mistrial was a provident exercise of discretion (see People v Young, 48 NY2d 995, 996; People v Hayden, 221 AD2d 367, 368). The determination whether to grant a request for a mistrial rests within the sound discretion of the trial court (see People v Ortiz, 54 NY2d 288, 292), 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, 552). Here, the trial court struck the question at issue and gave an immediate curative instruction. This was sufficient to protect the defendant’s rights (see People v Hayden, supra at 368; see also People v Butcher, 244 AD2d 499, 500). [668] Contrary to the opinion of our dissenting colleague, the trial court properly submitted manslaughter in the first degree to the jury as a lesser-included offense of the intentional second degree murder count. Based upon the defendant’s testimony that she engaged in a struggle with the victim, the jury could reasonably believe that the defendant did not intend to kill the victim, but rather, intended to seriously injure the victim (see People v Ford, 62 NY2d 275; People v Faison, 265 AD2d 422). The defendant’s remaining contentions are without merit. Feuerstein, J.P., Smith and Goldstein, JJ., concur.