People v. Brown

• Decision Date: 26 September 2014
• Citation: 2014 N.Y. Slip Op. 06407,120 A.D.3d 1545,992 N.Y.S.2d 591
• Parties: The PEOPLE of the State of New York, Respondent, v. Ernest BROWN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 1545
992 N.Y.S.2d 591
2014 N.Y. Slip Op. 06407

The PEOPLE of the State of New York, Respondent,
v.
Ernest BROWN, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Sept. 26, 2014.

[992 N.Y.S.2d 592]

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 alsoCPL 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)....