The opinion
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
867
KA 13-00170
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND LINDLEY, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
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.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.
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, of burglary in the second degree.
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 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 AD3d 1374, 1374; 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 AD3d 1617, 1619-1620, lv denied 22
NY3d 1040, reconsideration denied ___ NY3d ___ [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 NY3d 687, 695; People v
Becoats, 17 NY3d 643, 651). We decline to exercise our power to
review those unpreserved contentions as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]).
By failing to renew his motion for a trial order of dismissal
-2- 867
KA 13-00170
after presenting evidence, defendant failed to preserve his challenge
to the legal sufficiency of the evidence (see People v Hines, 97 NY2d
56, 61, rearg denied 97 NY2d 678; People v Sterina, 108 AD3d 1088,
1089). Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see People v Bleakley, 69 NY2d 490, 495; People v Lugo, 87 AD3d 1403,
1404, lv denied 18 NY3d 860). 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 NY2d 137, 147). 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 AD3d 1334, 1337, lv denied ___
NY3d ___ [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 AD3d 830, 831, lv
denied 7 NY3d 765).
Entered: September 26, 2014 Frances E. Cafarell
Clerk of the Court