People v. McComb , 786 N.Y.S.2d 784 ( 2004 )

Appeal from a judgment of the Oneida County Court (Barry Donalty, J.), rendered April 17, 2001. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree (two counts) and assault in the second degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum:

Defendant appeals from a judgment convicting him following a jury trial of two counts of robbery in the second degree (Penal Law § 160.10 [1], [2] [a]) and one count of assault in the second degree (§ 120.05 [6]). County Court properly exercised its discretion in denying the motion of defendant for a mistrial during the testimony of his codefendant (see generally People v Toland, 2 AD3d 1053, 1055 [2003], lv denied 2 NY3d 808 [2004]). The motion was based solely upon “speculation regarding the possibility of prejudice” to defendant arising from his codefendant’s reluctance to testify with respect to the involvement of other persons in the underlying incident (People v Chapman, 202 AD2d 297, 298 [1994], lv denied 83 NY2d 965 [1994] ). The court also properly rejected defendant’s Batson objection to the prosecutor’s exercise of a peremptory challenge and properly denied defendant’s motion to suppress the identification testimony of an eyewitness (see People v Linen, 5 AD3d 1022 [2004]). The sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Green, Pine, Gorski and Lawton, JJ.