SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
348
KA 13-00968
PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ALFRED MACK, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered May 16, 2013. The judgment convicted
defendant, upon a jury verdict, of criminal trespass in the second
degree, burglary in the second degree, criminal contempt in the second
degree and criminal contempt in the first 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 criminal trespass in the second degree (Penal
Law § 140.15 [1]), burglary in the second degree (§ 140.25 [2]),
criminal contempt in the second degree (§ 215.50 [3]), and criminal
contempt in the first degree (§ 215.51 [b] [v]). The conviction
arises out of two incidents on the same night in which defendant, in
violation of an order of protection, entered the home of his former
girlfriend and attacked her. We reject defendant’s contention that
Supreme Court erred in denying his request to charge criminal trespass
in the second degree as a lesser included offense of burglary in the
second degree. In order to establish entitlement to a charge on a
lesser included offense, “a defendant must show both that the greater
crime cannot be committed without having concomitantly committed the
lesser by the same conduct, and that a reasonable view of the evidence
supports a finding that he or she committed the lesser, but not the
greater, offense” (People v James, 11 NY3d 886, 888; see People v Van
Norstrand, 85 NY2d 131, 135; People v Glover, 57 NY2d 61, 63; see also
CPL 1.20 [37]; 300.50 [1], [2]). Here, the only reasonable view of
the evidence is that defendant knowingly entered or remained
unlawfully in a dwelling (see Penal Law § 140.15 [1]), intending to
engage in conduct prohibited by the order of protection while in the
banned premises that went beyond criminal trespass, thereby satisfying
the “ ‘intent to commit a crime therein’ element of burglary” (People
-2- 348
KA 13-00968
v Lewis, 5 NY3d 546, 548; see also Penal Law § 140.25; People v
Cajigas, 19 NY3d 697, 701-702). Contrary to defendant’s further
contention, “the court properly denied defendant’s request to charge
criminal contempt in the second degree . . . as a lesser included
offense of criminal contempt in the first degree because no reasonable
view of the evidence ‘would support a finding that [defendant]
committed the lesser offense but not the greater’ ” (People v Wilson,
55 AD3d 1273, 1274, lv denied 11 NY3d 931).
We reject defendant’s contention that prosecutorial misconduct on
summation deprived him of a fair trial. Even assuming, arguendo, that
some of the prosecutor’s remarks were improper, we conclude that they
were not so egregious as to deprive defendant of a fair trial, and any
prejudice was alleviated by the court’s prompt curative instruction
and its later instruction that the jury “may not consider sympathy”
(People v Melendez, 11 AD3d 983, 984, lv denied 4 NY3d 888; see People
v Riley, 117 AD3d 1495, 1496, lv denied 24 NY3d 1088). Finally, we
reject defendant’s contention that the court improperly limited his
testimony on redirect examination. The extent of redirect examination
is within the sound discretion of the trial court, and the testimony
sought here was properly excluded because it would not have explained
or clarified any testimony that had been elicited on cross-examination
(see People v Melendez, 55 NY2d 445, 451-453).
Entered: May 8, 2015 Frances E. Cafarell
Clerk of the Court