| People v Harris |
| 2008 NY Slip Op 10439 [57 AD3d 1523] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Freddie Harris,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Loretta S. Courtney of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered September 28,2005. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree (twocounts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, following a jury trial, of two counts ofburglary in the second degree (Penal Law § 140.25 [2]), defendant contends that he was deniedthe right to a fair trial when the prosecutor impeached his trial testimony by cross-examining him withrespect to his pretrial silence concerning exculpatory information omitted from his pretrial statement tothe police but included in his direct testimony at trial. We reject that contention. Although a prosecutorgenerally may not use the pretrial silence of a defendant to impeach his or her trial testimony (seePeople v Conyers, 52 NY2d 454, 457-459 [1981]), that general rule does not apply where, ashere, "a defendant speaks to the police and omits exculpatory information which he [or she] presentsfor the first time at trial" (People vPrashad, 46 AD3d 844 [2007], lv denied 10 NY3d 815 [2008]; see People v Bruno, 34 AD3d 220[2006], lv denied 8 NY3d 878 [2007]; People v Mosby, 239 AD2d 938 [1997],lv denied 90 NY2d 942 [1997]; see generally People v Savage, 50 NY2d 673,680-681 [1980], cert denied 449 US 1016 [1980]). We also reject the contention ofdefendant that he was denied the right to a fair trial when the prosecutor asked him two questions oncross-examination that violated County Court's Sandoval ruling. Defendant failed to object tothe court's curative instructions with respect to the questions on cross-examination and thus failed topreserve for our review his contention that those instructions were insufficient to alleviate the prejudicialeffect of the cross-examination (see People v Santiago, 52 NY2d 865 [1981]; People v Ware, 28 AD3d 1124, 1125[2006], lv denied 7 NY3d 852 [2006]). We note in any event that the jury is presumed to havefollowed the court's curative instructions (see Ware, 28 AD3d at 1125; People vMims, 278 AD2d 822 [2000], lv denied 96 NY2d 832 [2001]). Finally, the sentence isnot unduly harsh or severe. Present—Scudder, P.J., Smith, Centra and Fahey, JJ.