| People v Brown |
| 2014 NY Slip Op 06407 [120 AD3d 1545] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vErnest Brown, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Ernest Brown, defendant-appellant pro se.
Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered January 11, 2013. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of burglary in the second degree (Penal Law § 140.25 [2]).Defendant's contention that he was deprived of a fair trial by prosecutorial misconductduring the cross-examination of defendant and on summation is not preserved for ourreview. Defendant failed to object to most of the allegedly improper conduct (see People v Gonzalez, 81AD3d 1374, 1374 [2011]; see also CPL 470.05 [2]) and, when he objected,his objections were sustained, the court gave curative instructions to the jury and nofurther remedy was requested by defendant (see People v Ennis, 107 AD3d 1617, 1619-1620 [2013],lv denied 22 NY3d 1040 [2013], reconsideration denied 23 NY3d 1036[2014]). Defendant also failed to preserve for our review his contention that he wasdenied a fair trial by judicial misconduct arising from the questioning of a prosecutionwitness by County Court. Defendant did not object to the court's questioning of thatwitness, and we reject defendant's contention that the alleged judicial misconductconstitutes a mode of proceedings error for which preservation is not required (see generally People v Alcide,21 NY3d 687, 695 [2013]; People v Becoats, 17 NY3d 643, 651 [2011]). We declineto exercise our power to review those unpreserved contentions as a matter of discretionin the interest of justice (see CPL 470.15 [6] [a]).
By failing to renew his motion for a trial order of dismissal after presenting evidence,defendant failed to preserve his challenge to the legal sufficiency of the evidence (seePeople v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001];People v Sterina, 108 AD3d1088, 1089 [2013]). Viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Lugo, 87 AD3d1403, 1404 [2011], lv denied 18 NY3d 860 [2011]). Defendant's sentence isnot unduly harsh or severe.
We reject the contentions in the main and pro se supplemental briefs that defendantwas not provided effective assistance of counsel. Viewing the evidence, the law and thecircumstances of the case, in totality and as of the time of the representation, we concludethat defense counsel provided meaningful representation (see People v Baldi, 54NY2d 137, 147 [1981]). To the extent that the contentions in the pro se supplementalbrief involve matters outside the record on appeal, those contentions must be raised byway of a motion pursuant to CPL 440.10 (see People v Reed, 115 AD3d 1334, 1337 [2014], lvdenied 23 NY3d 1024 [2014]). Finally, we reject the contention in defendant's pro sesupplemental brief that cumulative errors deprived [*2]him of a fair trial (see People v Wurthmann, 26 AD3d 830, 831 [2006], lvdenied 7 NY3d 765 [2006]). Present—Scudder, P.J., Peradotto, Carni andLindley, JJ.