        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

728
KA 11-01163
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HARRY WILSON, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered September 30, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the third degree and
petit larceny (four counts).

     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 third degree (Penal Law §
140.20) and four counts of petit larceny (§ 155.25). Contrary to
defendant’s contention, he was not denied a fair trial based on
cumulative errors made by County Court. The court properly denied his
request to charge trespass as a lesser included offense of burglary in
the third degree inasmuch as “there was no reasonable view of the
evidence, viewed most favorably to defendant, that he entered [the
mall in question] without criminal intent and only subsequently formed
an intent to steal” (People v Zokari, 68 AD3d 578, lv denied 15 NY3d
758; see People v Smalls, 92 AD3d 420, 421; People v Mercado, 294 AD2d
805, 805, lv denied 98 NY2d 731).

     Contrary to defendant’s further contention, the court properly
admitted evidence concerning the barring notice issued to defendant
prohibiting him from entering onto the mall property because it was
relevant to establish that defendant knowingly entered the mall
unlawfully (see Penal Law § 140.20; see generally People v Alvino, 71
NY2d 233, 241-242). In addition, the court properly admitted evidence
with respect to the circumstances surrounding the issuance of that
barring order as necessary background and narrative information (see
generally People v Resek, 3 NY3d 385, 390). The probative value of
that evidence exceeded its potential for prejudice (see People v
Comfort, 60 AD3d 1298, 1301, lv denied 12 NY3d 924). Defendant failed
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                                                         KA 11-01163

to request a limiting instruction concerning evidence of the barring
order and thus did not preserve for our review his contention that the
court should have issued such an instruction after that evidence was
admitted (see People v Moore [appeal No. 2], 78 AD3d 1658, 1659). In
any event, the court issued such an instruction at the People’s
request following the close of evidence and during the jury charge.
We have considered the remaining instances of alleged cumulative error
and conclude that they are without merit. The sentence is not unduly
harsh or severe.




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
