| People v Currier |
| 2011 NY Slip Op 02573 [83 AD3d 1421] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Paul R.Currier, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.), renderedAugust 11, 2009. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree, criminal trespass in the second degree (two counts), attempted gang assault in thesecond degree, assault in the second degree, conspiracy in the fourth degree and endangering thewelfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawand as a matter of discretion in the interest of justice by reversing those parts convictingdefendant of criminal trespass in the second degree and dismissing those counts of theindictment, and by reducing the sentence imposed for burglary in the second degree to adeterminate term of incarceration of six years, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, one count each of burglary in the second degree (Penal Law § 140.25 [2]),attempted gang assault in the second degree (§§ 110.00, 120.06) and assault in thesecond degree (§ 120.05 [2]), and two counts of criminal trespass in the second degree(§ 140.15 [1]). The crimes arise from a beating administered to the victim by defendantand a group of his friends, all of whom unlawfully entered the victim's house while the victimwas sleeping. The theory of the prosecution was that defendant was upset with the victim for themanner in which he treated defendant's younger brother earlier in the evening. Defendantcontends that he was denied a fair trial by prosecutorial misconduct. Defendant failed to preservefor our review his contention that certain comments made by the prosecutor denigrated thedefense (see People v Jones, 63AD3d 1582, 1583 [2009], lv denied 13 NY3d 797 [2009]), and we decline toexercise our power to review those alleged instances of misconduct as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]). With respect to defendant's contentionthat the prosecutor engaged in misconduct by asking allegedly improper leading questions, wenote that those questions involved preliminary matters and thus were permissible "to carry thewitness quickly to matters material to the [relevant] issue[s]" (Prince, Richardson on Evidence§ 6-227 [Farrell 11th ed]).
We agree with defendant, however, that the prosecutor improperly circumvented theSandoval ruling issued by County Court by cross-examining defendant's girlfriendconcerning his arrest record. Nevertheless, we conclude that the court alleviated any prejudicearising from [*2]that isolated instance of prosecutorialmisconduct by its curative instruction in which the court informed the jury that the prosecutorwas mistaken with respect to the number of defendant's arrests and directed it not to considersuch evidence (see People v Murry,24 AD3d 1319, 1320 [2005], lv denied 6 NY3d 815 [2006]). We otherwise rejectdefendant's contention that he was deprived of a fair trial by prosecutorial misconduct (seegenerally People v Rubin, 101 AD2d 71, 77-78 [1984]).
By failing to renew his motion for a trial order of dismissal after presenting evidence,defendant failed to preserve for our review his contention that the evidence of physical injury islegally insufficient to support the conviction of assault in the second degree and attempted gangassault (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678[2001]). In any event, we conclude that the evidence, viewed in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to establishthat the victim suffered the requisite "substantial pain" as a result of the attack (Penal Law§ 10.00 [9]; see People v Goico, 306 AD2d 828, 828-829 [2003]). In addition,viewing the evidence in light of the elements of the crime of assault in the second degree ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Byfailing to object to the verdict before the jury was discharged, defendant failed to preserve for ourreview his contention that the verdict is repugnant (see People v Alfaro, 66 NY2d 985,987 [1985]; People v Louder, 74AD3d 1845 [2010]).
Although not raised by defendant, the People correctly point out that the counts chargingdefendant with criminal trespass in the second degree are lesser included offenses of burglary inthe first degree (see People v Greene, 291 AD2d 410 [2002], lv denied 98 NY2d651 [2002]). We note in any event that preservation of this issue is not required (see People vMitchell, 216 AD2d 863 [1995], lv denied 86 NY2d 798 [1995]). We thereforemodify the judgment by reversing those parts convicting defendant of criminal trespass in thesecond degree. Finally, we agree with defendant that the sentence imposed for burglary in thesecond degree is unduly harsh and severe. Thus, as a matter of discretion in the interest of justice(see CPL 470.15 [6] [b]), we modify the judgment by reducing the sentence for that countto a determinate term of incarceration of six years. Present—Centra, J.P., Peradotto,Lindley, Sconiers and Martoche, JJ.