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

1314
KA 12-00660
PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GARY D. JAMES, DEFENDANT-APPELLANT.


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

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered February 29, 2012. The judgment convicted
defendant, upon a jury verdict, of burglary in the first degree,
unlawful imprisonment in the second degree and assault in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice and on the law by reversing that part convicting defendant of
unlawful imprisonment in the second degree and dismissing count two of
the indictment and by reducing the sentence imposed for burglary in
the first degree to a determinate term of five years of incarceration
to be followed by three years of postrelease supervision and as
modified the judgment is affirmed.

     Memorandum: On appeal from the judgment convicting him upon a
jury verdict of burglary in the first degree (Penal Law § 140.30 [2]),
unlawful imprisonment in the second degree (§ 135.05) and assault in
the second degree (§ 120.05 [6]), defendant contends that his
conviction of unlawful imprisonment should be dismissed pursuant to
the merger doctrine. Although defendant failed to preserve his
contention for our review (see CPL 470.05 [2]; People v Johnson, 204
AD2d 1024, 1024, lv denied 84 NY2d 827), we exercise our power to
review it as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]) and, because we agree with defendant, we modify
the judgment accordingly. “Under the doctrine of judicial merger, an
unlawful imprisonment or kidnapping that is incidental to and
inseparable from the commission of another crime merges with such
other crime” (People v Moore, 154 AD2d 929, 929, lv denied 75 NY2d
773). In determining whether the merger doctrine applies herein, “our
guiding principle is whether [defendant’s] restraint [of the victim]
was so much the part of another substantive crime[, i.e., the crime of
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                                                         KA 12-00660

assault,] that the substantive crime could not have been committed
without such acts [constituting the crime of unlawful imprisonment]
and that independent criminal responsibility may not fairly be
attributed to them” (People v McEathron, 86 AD3d 915, 915-916, lv
denied 19 NY3d 975 [internal quotation marks omitted]). Here, the
brief “abduction” of the victim, i.e., the moment when defendant
grabbed the victim and pulled him outside the dwelling at issue, was
“merely ‘preliminary, preparatory, or concurrent action’ in relation
to the ultimate crime [of assault]” (People v Swansbrough, 22 AD3d
877, 878, quoting People v Miles, 23 NY2d 527, 539, cert denied 395 US
948), and we thus conclude that the unlawful imprisonment count merged
with the assault count (see id.; see also People v Major, 142 AD2d
603, 604).

     Defendant failed to preserve for our review his contention that
the evidence is legally insufficient to support the conviction of
burglary in the first degree inasmuch as he made only a general motion
for a trial order of dismissal (see People v Gray, 86 NY2d 10, 19)
and, furthermore, he failed to renew the motion after presenting
evidence (see People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d
678). In any event, that contention lacks merit.

     First, defendant contends that the evidence with respect to the
burglary conviction is legally insufficient because the People did not
establish that defendant entered the victim’s dwelling with intent to
commit the crime of unlawful imprisonment. “ ‘In order to secure a
conviction for burglary, the People need only allege and prove a
knowing and unlawful entry coupled with an intent to commit a crime
therein. There is no requirement that the People allege or establish
what particular crime was intended’ ” (People v Lewis, 5 NY3d 546,
552, quoting People v Mahboubian, 74 NY2d 174, 193). However, “[i]f
the People . . . expressly limit[ ] their theory of the ‘intent to
commit a crime therein’ element to a particular crime, then they would
have . . . to prove that the defendant intended to commit that crime”
(id. at 552 n 7). Even assuming, arguendo, that the prosecutor
expressly limited the “intent to commit a crime therein” to the crime
of unlawful imprisonment, we reject defendant’s contention that the
burglary count necessarily fails upon our dismissal of the unlawful
imprisonment count. To the extent that the People limited their
theory of intent to the allegation that defendant intended to commit
unlawful imprisonment, “the People were required to prove only that
defendant intended to commit [that] crime[]” (People v Bibbes, 98 AD3d
1267, 1269, amended on rearg 100 AD3d 1473, lv denied 20 NY3d 931),
“not that he actually committed [that crime]” (People v Porter, 41
AD3d 1185, 1186, lv denied 9 NY3d 963 [emphasis added]; see People v
Mackey, 49 NY2d 274, 279). Here, the People established that
defendant intended to commit the crime of unlawful imprisonment upon
entering the victim’s home, i.e., defendant intended to restrain the
victim (see Penal Law § 135.05), and the dismissal of the underlying
count of unlawful imprisonment based on the merger doctrine does not
impact the burglary conviction.

     Second, defendant contends in support of his legal sufficiency
challenge with respect to the burglary conviction that the evidence
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                                                         KA 12-00660

does not demonstrate that he entered the victim’s dwelling with the
intent to commit any crime therein. We reject that contention (see
generally People v Bleakley, 69 NY2d 490, 495). “ ‘In burglary cases,
the defendant’s intent to commit a crime within the premises may be
inferred beyond a reasonable doubt from the circumstances of the
entry’ ” (People v Beaty, 89 AD3d 1414, 1416, affd 22 NY3d 918), his
“unexplained presence on the premises, and [his] actions and
statements when confronted by police or the property owner” (People v
Ostrander, 46 AD3d 1217, 1218; see People v Rodriguez, 17 NY3d 486,
489; People v Bracey, 41 NY2d 296, 301, rearg denied 41 NY2d 1010).
Here, defendant’s intent to commit the crime of unlawful imprisonment
in the second degree, i.e., his intent to restrain the victim, may be
inferred from the evidence that defendant reached into the victim’s
dwelling and dragged him to the porch before continuously punching
him.

     Third, defendant contends in support of his legal sufficiency
challenge with respect to the burglary conviction that the People
failed to establish that defendant caused physical injury to the
victim while entering the victim’s dwelling, while in the dwelling, or
while in immediate flight therefrom. We reject that contention.
There is no dispute that the physical contact between defendant and
the victim began when defendant grabbed the victim inside the victim’s
home and continued as defendant pulled the victim onto the porch of
that dwelling. We conclude that the circumstances of this case
reflect a continuous assault that began when defendant grabbed the
victim inside the victim’s dwelling (see generally People v Alonzo, 16
NY3d 267, 270; People v Snyder, 100 AD3d 1367, 1367, lv denied 21 NY3d
1010).

     Defendant likewise failed to preserve for our review his
contention that the conviction of assault in the second degree is not
supported by legally sufficient evidence (see Gray, 86 NY2d at 19; see
also Hines, 97 NY2d at 61), and in any event it lacks merit (see
generally Bleakley, 69 NY2d at 495). Viewing the evidence in light of
the crimes of burglary in the first degree and assault in the second
degree as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s further contention that the verdict with
respect to those crimes is against the weight of the evidence (see
generally Bleakley, 69 NY2d at 495).

     Defendant further contends that he was denied a fair trial and
thus that reversal is required based on the cumulative effect of
various errors committed by County Court. We reject that contention.
We note at the outset that we agree with defendant that the court
erred with respect to its Sandoval ruling in failing “to make the
necessary determination that the probative value of [defendant’s prior
convictions of criminal contempt and resisting arrest] on the issue of
defendant’s credibility outweighed the potential for prejudice to
defendant” (People v Arnold, 298 AD2d 895, 896, lv denied 99 NY2d 580;
see generally People v Williams, 56 NY2d 236, 238-239). In addition,
the court erred in determining that defendant opened the door to the
prosecutor’s cross-examination of a defense witness concerning
defendant’s prior conviction of assault in the third degree (cf.
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                                                         KA 12-00660

People v Fardan, 82 NY2d 638, 646; People v Lyon, 77 AD3d 1338, 1338,
lv denied 15 NY3d 954). Reversal is not required, however, because
the court’s errors were harmless (see People v Wongsam, 105 AD3d 980,
981-982, lv denied 21 NY3d 1012; People v Towsley, 53 AD3d 1083, 1084,
lv denied 11 NY3d 795; see generally People v Grant, 7 NY3d 421, 424).

     Defendant waived his further contention that he was denied a fair
trial by the court’s submission of an annotated verdict sheet to the
jury, inasmuch as the record establishes that he consented thereto
(see People v Cipollina, 94 AD3d 1549, 1550, lv denied 19 NY3d 971;
see also People v Johnson, 96 AD3d 1586, 1587, lv denied 19 NY3d
1027). Defendant failed to preserve for our review his contentions
concerning the court’s failure to dismiss the indictment based on
allegedly defective grand jury proceedings and the court’s alleged
error in allowing the prosecutor and an assistant prosecutor to read
into the record at trial portions of defendant’s grand jury testimony
(see CPL 470.05 [2]). We decline to exercise our power to review
those contentions as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]). We further conclude that the court did not
err in admitting that redacted testimony in evidence and thus that
defendant was not thereby denied a fair trial (see People v Harris,
249 AD2d 775, 777).

     Defendant likewise failed to preserve for our review his
contention that he was denied a fair trial by prosecutorial misconduct
(see CPL 470.05 [2]), and in any event it lacks merit. “Reversal
based on prosecutorial misconduct is ‘mandated only when the conduct
[complained of] has caused such substantial prejudice to the defendant
that he has been denied due process of law’ ” (People v Jacobson, 60
AD3d 1326, 1328, lv denied 12 NY3d 916), and that cannot be said here.
We reject defendant’s further contention that he did not receive
effective assistance of counsel (see generally People v Baldi, 54 NY2d
137, 147). To the extent that defendant contends that defense counsel
was ineffective in failing to object to the annotated verdict sheet
and, indeed, in consenting to its submission, we conclude under the
circumstances of this case that such error was not so prejudicial as
to deprive defendant of a fair trial and thus does not constitute
ineffective assistance (see People v Kirkland, 49 AD3d 1260, 1261, lv
denied 10 NY3d 961, cert denied 555 US 1181; see generally People v
Benevento, 91 NY2d 708, 712-713).

     Finally, we agree with defendant that the sentence is unduly
harsh and severe insofar as it imposes a determinate term of 6½ years
of imprisonment on the burglary conviction to be followed by five
years of postrelease supervision. We therefore further modify the
judgment as a matter of discretion in the interest of justice by
reducing the sentence imposed for the burglary conviction to a
determinate term of five years of imprisonment to be followed by three
years of postrelease supervision.


Entered:   February 7, 2014                     Frances E. Cafarell
                                                Clerk of the Court
