Criminal Law · MBE-tested
The People of the State of New York, Respondent, v. Kenneth M. Horn, Appellant
284 A.D.2d 986726 N.Y.S.2d 882·New York Supreme Court, Appellate Division·2001·NY
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Opinion
The People of the State of New York, Respondent, v Kenneth M. Horn, Appellant.
[726 NYS2d 882]
[MAJORITY]
—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of two counts of murder in the second degree (Penal Law § 125.25 [2], [3]), and one count of burglary in the third degree (Penal Law § 140.20). Contrary to defendant’s contentions, the evidence is legally sufficient to support the conviction and the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). We further reject defendant’s contention that a mistrial was required based on the hearsay testimony of a witness concerning defendant’s involvement in the murder. Supreme Court promptly issued a curative instruction (see, People v Davis, 58 NY2d 1102, 1103-1104; see generally, People v Berg, 59 NY2d 294, 299-300) and did not abuse its discretion in refusing to grant a mistrial (see, People v Ortiz, 54 NY2d 288, 292). The sentence is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Monroe County, Bender, J.— Murder, 2nd Degree.) Present — Pigott, Jr., P. J., Pine, Hurl-butt, Scudder and Burns, JJ.