| People v Kester |
| 2007 NY Slip Op 08584 [45 AD3d 1355] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Brian S.Kester, Appellant. |
—[*1] Brian S. Kester, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered July28, 2004. The judgment convicted defendant, upon a jury verdict, of burglary in the seconddegree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of burglary inthe second degree (Penal Law § 140.25 [2]), defendant contends that County Court erred inadmitting in evidence a statement made by defendant to the police during an investigation thatresulted in a prior conviction of attempted burglary in the second degree. We reject thatcontention. In that prior statement, defendant informed the police that he had approached a homeprior to burglarizing it and, when the occupant answered the door, he asked for someone whomhe knew did not reside there. In this case, the position of the defense was that defendant believedthat he had permission to be in the burglarized home to drop off clothing for a child, although thePeople established at trial that no children resided there. We thus conclude that the priorstatement was admissible on the issue of defendant's intent to commit the burglary as well as theabsence of mistake, and that, under the circumstances, its probative value outweighed anypotential for prejudice (see People vTaylor, 2 AD3d 1306, 1308 [2003], lv denied 2 NY3d 746 [2004]; People vGuiteau, 267 AD2d 1094 [1999], lv denied 94 NY2d 920 [2000]; see generallyPeople v Ventimiglia, 52 NY2d 350, 359-360 [1981]; People v Powell, 152 AD2d918 [1989]).
Defendant further contends that two of the prosecutor's statements during summation wereinflammatory and irrelevant and that the court erred in denying his motion for a mistrial based onprosecutorial misconduct. We reject that contention. The court sustained defendant's objectionsto both statements, instructing the jury to disregard one of the statements and striking the otherstatement from the record, and we conclude that the court's "firm control over the trial obviatedany prejudice to defendant" resulting from the prosecutor's alleged misconduct (People vChristopher, 170 AD2d 1020, 1021 [1991], lv denied 78 NY2d 921 [1991]). We thusconclude that the court [*2]did not abuse its discretion in denyingdefendant's motion for a mistrial (see generally People v Ortiz, 54 NY2d 288, 292[1981]). Contrary to the final contention of defendant in his main brief, the sentence is notunduly harsh or severe.
The contention of defendant in his pro se supplemental brief that he was denied effectiveassistance of counsel is based on matters outside the record on appeal and thus must be raised byway of a motion pursuant to CPL article 440 (see People v Keith, 23 AD3d 1133, 1134-1135 [2005], lvdenied 6 NY3d 815 [2006]). Present—Gorski, J.P., Smith, Centra, Lunn andPeradotto, JJ.