Opinion
2014-09-26
The PEOPLE of the State of New York, Respondent, v. Ernest BROWN, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Ernest Brown, Defendant–Appellant Pro Se.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Ernest Brown, Defendant–Appellant Pro Se.
Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, and LINDLEY, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25[2] ). Defendant's contention that he was deprived of a fair trial by prosecutorial misconduct during the cross-examination of defendant and on summation is not preserved for our review. Defendant failed to object to most of the allegedly improper conduct ( see People v. Gonzalez, 81 A.D.3d 1374, 1374, 916 N.Y.S.2d 860; see also CPL 470.05[2] ) and, when he objected, his objections were sustained, the court gave curative instructions to the jury and no further remedy was requested by defendant ( see People v. Ennis, 107 A.D.3d 1617, 1619–1620, 969 N.Y.S.2d 284, lv. denied22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386, reconsideration denied23 N.Y.3d 1036, ––– N.Y.S.2d ––––, –––N.E.3d –––– [July 14, 2014] ). Defendant also failed to preserve for our review his contention that he was denied a fair trial by judicial misconduct arising from the questioning of a prosecution witness by County Court. Defendant did not object to the court's questioning of that witness, and we reject defendant's contention that the alleged judicial misconduct constitutes a mode of proceedings error for which preservation is not required ( see generally People v. Alcide, 21 N.Y.3d 687, 695, 976 N.Y.S.2d 432, 998 N.E.2d 1056; People v. Becoats, 17 N.Y.3d 643, 651, 934 N.Y.S.2d 737, 958 N.E.2d 865). We decline to exercise our power to review those unpreserved contentions as a matter of discretion in the interest of justice ( seeCPL 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 ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396; People v. Sterina, 108 A.D.3d 1088, 1089, 968 N.Y.S.2d 296). Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; People v. Lugo, 87 A.D.3d 1403, 1404, 930 N.Y.S.2d 114, lv. denied18 N.Y.3d 860, 938 N.Y.S.2d 868, 962 N.E.2d 293). Defendant's sentence is not unduly harsh or severe.
We reject the contentions in the main and pro se supplemental briefs that defendant was not provided effective assistance of counsel. Viewing the evidence, the law and the circumstances of the case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation ( see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). To the extent that the contentions in the pro se supplemental brief involve matters outside the record on appeal, those contentions must be raised by way of a motion pursuant to CPL 440.10 ( see People v. Reed, 115 A.D.3d 1334, 1337, 982 N.Y.S.2d 670, lv. denied23 N.Y.3d 1024, ––– N.Y.S.2d ––––, ––– N.E.3d –––– [June 25, 2014] ). Finally, we reject the contention in defendant's pro se supplemental brief that cumulative errors deprived him of a fair trial ( see People v. Wurthmann, 26 A.D.3d 830, 831, 808 N.Y.S.2d 521, lv. denied7 N.Y.3d 765, 819 N.Y.S.2d 890, 853 N.E.2d 261).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.