New York State Court of Claims

New York State Court of Claims

MONKO v. THE STATE OF NEW YORK, #2000-007-014, Claim No. 97677, Motion No. M-61479


Claimant, an inmate, moved for a mistrial upon the grounds that, inter alia, it was improper to have him appear at trial via a dedicated-line television transmission. Motion denied because claimant failed to raise the issue until a month after trial, thus he waived his objection.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
Daniel K. Monko, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General
(Dennis M. Acton, Esq., Assistant Attorney General,of Counsel)
Third-party defendant's attorney:

Signature date:
May 19, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application for an order granting a mistrial. The return date of the motion was May 3, 2000. The following papers were read and considered by the court:

Notice of Motion, Affidavit in Support
of Claimant, Annexed Exhibits 1, 2, 3

Affidavit in Opposition of Dennis M.
Acton, Esq. 4
Reply Affidavit of Claimant 5

On February 24, 2000, a bifurcated trial of the above-entitled claim was conducted during a regularly scheduled prisoner pro se term at
Clinton Correctional Facility
(hereinafter Clinton). Claimant appeared at the trial via a dedicated-line television transmission. During the trial, claimant was physically located at Green Haven Correctional Facility (hereinafter Green Haven), where he was incarcerated. Television transmissions were operated at both Clinton and Green Haven during the trial. The television at Clinton showed claimant and, in a small picture-in-picture part of the screen, the image being sent from Clinton to Green Haven was shown. At Green Haven, the television displayed the court at Clinton and, in a small picture-in-picture part of the screen, the picture being sent from Green Haven was displayed.

Claimant testified, examined witnesses and offered exhibits into evidence at the trial. At the close of both parties' proof, claimant requested permission to submit post-trial written arguments. Claimant's request was granted and thus a decision on the merits of the claim was not rendered. On April 3, 2000, the court received claimant's memorandum of law. On April 4, 2000, claimant filed the instant motion for a mistrial with the Clerk of the Court of Claims. Claimant's primary arguments in support of his motion are that he was prejudiced both because he was not physically present in the court at Clinton and because the trial date was changed from February 25 to February 24.

An application for a mistrial should be made at the time the purportedly prejudicial error or conduct occurs (Muka v Cohn, 146 AD2d 826; Prince, Richardson on Evidence § 1-205 [Farrell 11th ed]). A party cannot defer a request for a mistrial in hopes of a favorable result in the trial and, if the result is not favorable, then come forward with the application (Schein v Chest Serv. Co., 38 AD2d 929). The requirement that a mistrial motion be prompt is buttressed by the general rule that an issue is preserved only by a timely objection, which affords an opportunity to address and correct the alleged error (see, Matter of Jimenez v Goord, 264 AD2d 918, 919; Thaler & Thaler v Rourke, 217 AD2d 893, 894).

Claimant did not object on February 24 to the conducting of the trial. He made no objection until over a month after the trial was completed. Indeed, at the commencement of the trial, claimant stated:
"I have no objection other than to say this here, I would ask that the court be patient with me as I am formulating my questions."[1]

Claimant was obviously fully aware of the nature of the trial and nevertheless chose to proceed without objection. After having not objected at trial and thus agreed sub silento to proceeding, claimant cannot now prevail on his belated application. Interestingly, claimant states in his application in support of the current motion that he believes he satisfied his burden of proof at trial and he seeks a mistrial only if the court is not going to find in his favor. Such a procedure would be improper (see, Schein v Chest Serv. Co., supra). The court concludes that by failing to object on the date of trial, claimant waived any complaints about the use of a television transmission at trial, as well as the other procedural matters asserted in the instant motion.

Claimant's motion is denied.

May 19, 2000
Plattsburgh, New York

Judge of the Court of Claims

Quote taken from the tape of the trial.