| People v Wilson |
| 2012 NY Slip Op 04567 [96 AD3d 1470] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Harry Wilson,Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), renderedSeptember 30, 2010. The judgment convicted defendant, upon a jury verdict, of burglary in thethird degree and petit larceny (four counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofburglary in the third degree (Penal Law § 140.20) and four counts of petit larceny (§155.25). Contrary to defendant's contention, he was not denied a fair trial based on cumulativeerrors made by County Court. The court properly denied his request to charge trespass as a lesserincluded offense of burglary in the third degree inasmuch as "there was no reasonable view of theevidence, viewed most favorably to defendant, that he entered [the mall in question] withoutcriminal intent and only subsequently formed an intent to steal" (People v Zokari, 68 AD3d 578[2009], lv denied 15 NY3d 758 [2010]; see People v Smalls, 92 AD3d 420, 421 [2012]; People vMercado, 294 AD2d 805, 805 [2002], lv denied 98 NY2d 731 [2002]).
Contrary to defendant's further contention, the court properly admitted evidence concerningthe barring notice issued to defendant prohibiting him from entering onto the mall propertybecause it was relevant to establish that defendant knowingly entered the mall unlawfully(see Penal Law § 140.20; see generally People v Alvino, 71 NY2d 233,241-242 [1987]). In addition, the court properly admitted evidence with respect to thecircumstances surrounding the issuance of that barring order as necessary background andnarrative information (see generallyPeople v Resek, 3 NY3d 385, 390 [2004]). The probative value of that evidenceexceeded its potential for prejudice (seePeople v Comfort, 60 AD3d 1298, 1301 [2009], lv denied 12 NY3d 924[2009]). Defendant failed to request a limiting instruction concerning evidence of the barringorder and thus did not preserve for our review his contention that the court should have issuedsuch an instruction after that evidence was admitted (see People v Moore [appeal No. 2],78 AD3d 1658, 1659 [2010]). In any event, the court issued such an instruction at the People'srequest following the close of evidence and during the jury charge. We have considered theremaining instances of alleged cumulative error and conclude that they are without merit. Thesentence is not unduly harsh or severe. Present—Scudder, P.J., Centra, Fahey, Peradottoand Sconiers, JJ.