
    The People of the State of New York, Respondent, v David Ortiz, Appellant.
    Argued October 13, 1981;
    decided November 23, 1981
    
      POINTS OF COUNSEL
    
      Brian Sheppard, and William E. Hellerstein for appellant.
    I. Appellant was deprived of his right to due process and to confront the witnesses against him when the prosecutor was permitted, over defense objection, to inform the jury that he had elicited the stenographically recorded confession from appellant. (Berger v United States, 295 US 78; People v Lovello, 1 NY2d 436; People v Puglisi, 44 NY2d 748; People v Carter, 40 NY2d 933; People v Carborano, 301 NY 39; United States v Birdman, 602 F2d 547, 444 US 1032; United States v Puco, 436 F2d 761, 414 US 844; People v Duncan, 13 NY2d 37; Greenberg v United States, 280 F2d 472; People v Tassiello, 300 NY 425.) II. Appellant was deprived of his right to confront the witnesses against him when the court, over objection, effectively permitted the police to testify that two informers not produced at trial had heard appellant make inculpatory statements. (Moore v United States, 429 US 20; People v Ross, 79 AD2d 666; People v Tufano, 69 AD2d 826.)
    
      Robert M. Morgenthau, District Attorney (Amyjane Rettew and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt. II. The trial prosecutor’s conduct was not an issue at trial, so there was no danger that he would become an unsworn witness. The court therefore soundly exercised its discretion when it denied defendant’s motion for a mistrial. (People v Paperno, 77 AD2d 137; Hall v Potoker, 49 NY2d 501; People v Michael, 48 NY2d 1; Matter of Napoli v Supreme Ct. of State of N. Y., 33 NY2d 980, cert den sub nom. Napoli v New York, 417 US 947; People v Brown, 48 NY2d 921; People v Duncan, 46 NY2d 74, 442 US 910; People v Fisher, 249 NY 419; People v Payne, 35 NY2d 22.) III. The hearsay testimony about which defendant complains did not incriminate defendant in the commission of the murders, was elicited by defense counsel, and was, in any event, harmless. (People v Jackson, 39 NY2d 64; People v AlKanani, 33 NY2d 260; People v Beyer, 25 NY2d 833; People v De Renzzio, 19 NY2d 45.)
   OPINION OF THE COURT

Gabrielli, J.

Defendant was convicted of three counts of murder in the second degree (Penal Law, § 125.25), one count of robbery in the first degree (Penal Law, § 160.15) and one count of burglary in the first degree (Penal Law, § 140.30). His convictions were affirmed by the Appellate Division, without opinion. On this appeal, defendant seeks reversal of his convictions on the basis of the prosecutor’s actions at the trial, which are claimed to have made him an “unsworn witness” against defendant. As we find no merit in defendant’s argument, there should be an affirmance.

On December 2, 1977, three persons were murdered in their Lower East Side apartment. Defendant was arrested six months later for his part in these murders, which were believed to have occurred during the course of a robbery. After being advised of his Miranda rights, defendant initially denied having taken any part in the crimes. Some time later, however, defendant changed his mind and asked to speak to a homicide detective. Defendant then confessed to his participation in the robbery of the victims, explaining that his accomplice actually shot the three victims during the course of the crime. The detective took down the confession in longhand.

Some time after defendant made this statement, Assistant District Attorney Cooper and a stenographer arrived at the station house to record defendant’s confession. This second confession was essentially the same as the first statement defendant had given to the detective, with some additional details.

Defendant’s pretrial motion to suppress his confessions was denied. The defendant was tried before a jury, but a mistrial was ultimately declared when it was found that information not in evidence had been inadvertently shown to the jurors during their deliberations.

At the start of defendant’s retrial, on the voir dire of the jury, Assistant District Attorney Cooper, who had taken defendant’s second confession, asked the prospective jurors the following question: “Will any of you have any problem with the fact that I took the statement?” The following day, defense counsel moved for a mistrial, because the jury had been informed of the prosecutor’s role in taking the confession, explaining that he had intended all along to request that this information be kept from the jury. Defense counsel argued that the fact that Mr. Cooper had taken the second confession created a risk that he would become an unsworn witness at trial. The court denied the motion, but declared its intention to keep references to Mr. Cooper’s pretrial involvement to a minimum, inasmuch as the voluntariness of the confession would be an important issue at trial.

During the trial, Assistant District Attorney Cooper did make reference to the fact of his presence during defendant’s second confession. On direct examination, he asked a witness, without defense objection, “ did I or anybody else yell at the defendant?” In addition, again without objection, Mr. Cooper read the defendant’s confession to the jury, including its references to himself as the questioner.

Defendant’s convictions were affirmed by the Appellate Division, without opinion. On the present appeal, defendant argues that he was deprived of due process and the right to confront the witnesses against him when the prosecutor informed the jury that he had taken the stenographically recorded confession. As a result of the trial court’s denial of defendant’s motion for a mistrial, it is claimed that the prosecutor effectively became an unsworn witness against defendant.

We believe it appropriate to apply the rule announced in People v Paperno (54 NY2d 294 [decided herewith]), as the present case involves the similar problem of the prosecutor’s becoming an unsworn witness against defendant, although the case does not arise in precisely the same procedural posture. We begin by noting that the decision to grant or deny a motion for a mistrial is within the trial court’s discretion (Hall v Potoker, 49 NY2d 501; People v Michael, 48 NY2d 1; Matter of Napoli v Supreme Ct. of State of N. Y., 40 AD2d 159, affd 33 NY2d 980). That we will not interfere with this decision unless it amounts to an abuse of discretion is clear (Hall v Potoker, supra).

We conclude that, on the showing made by defense counsel, the trial court did not abuse its discretion in denying the motion for a mistrial. It was not established that the prosecutor would be called as a witness, nor that there was any significant likelihood that the prosecutor’s conduct would become a material issue at the trial. Rather, in arguing that the voluntariness of the confession would be a major issue at trial, defense counsel focused on the circumstances surrounding the first confession, which was taken by the homicide detective. It was never claimed that the prosecutor himself had coerced or intimidated defendant at the time of the stenographic recording of the second confession.

We also reject defendant’s claim that he was deprived of due process by the prosecutor’s conduct at the trial, inasmuch as defendant has not demonstrated a substantial likelihood of prejudice flowing from the prosecutor’s references to his pretrial involvement in eliciting the second confession (see People v Paperno, 54 NY2d 294, supra [decided herewith]). The prosecutor’s pretrial conduct never became, in actuality, an issue at the trial. Although it may have been preferable to avoid all mention of the prosecutor’s pretrial role, we nevertheless conclude, under the circum- . stances of this case, that defendant has not demonstrated the likelihood of prejudice necessary to warrant a reversal of his conviction.

We have examined defendant’s remaining contention, and find it to be without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed. 
      
      . Defense counsel’s excuse for the delay was that it had never occurred to him that the prosecutor would bring this information out on the voir dire. However, it appears that Mr. Cooper had done exactly the same thing on the prior trial in which defense counsel also participated. Thus, defense counsel’s claim of surprise is untenable.
     
      
      . In Papernó, defendant had moved to recuse the prosecutor just prior to trial, on the basis that he intended to call the prosecutor as a witness, and on the additional basis that the prosecutor would be in a position to argue his own credibility before the jury. The present case involves a motion for a mistrial on the ground that the prospective jurors had been informed of the prosecutor’s pretrial involvement with the case against defendant. Despite the varying procedural contexts in the two cases, they raise the same essential issue of when the prosecutor’s pretrial role may affect the ability of defendant to receive a fair trial.
     
      
      . While the question of timeliness on a motion for a mistrial is not usually a primary consideration, the court would have been within its discretion in considering this factor. In the posture of cases such as this, if it becomes clear that defendant was aware of the potential risk that the prosecutor would become an unsworn witness against him for a lengthy period of time before the trial, it is certainly not without significance that he delayed in making his request until a point in the proceedings where the only possible relief was to abort the trial.
     
      
      . We note here, as we recognized in Pwperno, that the trial court might have fashioned a less drastic remedy than mistrial at this point. It might have been preferable for the court to have ordered that those parts of defendant’s confession identifying the prosecutor be redacted. Nevertheless, under the circumstances of this case, we conclude that the court’s failure to do so did not deprive defendant of a fair trial.
     
      
      . It is also relevant that defendant never objected to the actions of the prosecutor which are now claimed to have deprived defendant of due process. This may, in a given case, support the view that the prosecutor’s pretrial conduct was not a material issue, inasmuch as the defendant made no effort to object to it at a time when potential prejudice could more likely have been avoided.
     