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

178
KA 14-00196
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROSS SANFORD, JR., DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered January 17, 2014. 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 as a sexually
motivated felony (Penal Law §§ 130.91 [1]; 140.25 [2]). The
conviction arises from the victim’s report that, one night while she
was sleeping, her neighbor had entered her apartment, disrobed,
pounced onto her in bed, held a towel over her mouth, and told her
that he had tried to “do stuff” with her in the past. Eventually,
defendant let go of the victim, put his clothes back on, and left.
Defendant contends that his conviction is based on legally
insufficient evidence and that the verdict is against the weight of
the evidence. We reject those contentions. Viewing the evidence in
the light most favorable to the prosecution (see People v Contes, 60
NY2d 620, 621), we conclude that “there is a valid line of reasoning
and permissible inferences to support the jury’s finding that
defendant committed the crime[] of which he was convicted based on the
evidence presented at trial” (People v Scott, 93 AD3d 1193, 1194, lv
denied 19 NY3d 967, reconsideration denied 19 NY3d 1001; see generally
People v Bleakley, 69 NY2d 490, 495). 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 further conclude that the verdict is
not against the weight of the evidence (see generally Bleakley, 69
NY2d at 495).

     Defendant failed to preserve for our review his contention that
the court improperly denied his use of a peremptory challenge to
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excuse a prospective juror, who was ultimately seated on the jury. We
are unable to determine from our review of the record “whether
defendant in fact exercised [a] peremptory challenge[]” to the
prospective juror (People v Watkins, 229 AD2d 957, 958, lv denied 89
NY2d 931), and the record does not establish that the court was made
aware “that the defense wanted him to rule otherwise” (People v
Rosario-Boria, 110 AD3d 1486, 1486 [internal quotation marks omitted).
We decline to exercise our power to review that contention as a matter
of discretion in the interest of justice (see CPL 470.15 [6] [a]).

     We reject defendant’s contention that the indictment was
jurisdictionally defective. Contrary to the People’s contention,
preservation was not required (see People v Iannone, 45 NY2d 589, 600-
601; People v Holmes, 101 AD3d 1632, 1633, lv denied 21 NY3d 944).
“[A]n indictment is jurisdictionally defective only if it does not
effectively charge the defendant with the commission of a particular
crime[, such as] if it fails to allege that a defendant committed acts
constituting every material element of the crime charged” (Iannone, 45
NY2d at 600). In that regard, it is well established that
“ ‘incorporation [in an indictment] by specific reference to the
statute [defining the crime charged] operates without more to
constitute allegations of all the elements of the crime’ ” (People v
Boula, 106 AD3d 1371, 1372, lv denied 21 NY3d 1040, quoting People v
Cohen, 52 NY2d 584, 586). Here, the indictment charged defendant with
“burglary in the second degree (as a sexually motivated felony),” and
thereby incorporated by reference the elements of the crime of a
sexually motivated felony, i.e., that he committed the “specified
offense for the purpose, in whole or substantial part, of his or her
own direct sexual gratification” (Penal Law § 130.91 [1]). Although
the indictment omitted the Penal Law section number for the charged
offense, we conclude that the indictment was not jurisdictionally
defective inasmuch as it correctly referred to the specified crime by
name (see People v Parrilla, 145 AD3d 629, 629-630; People v Bishop,
115 AD3d 1243, 1244, lv denied 23 NY3d 1018, reconsideration denied 24
NY3d 1082). Insofar as defendant contends that the indictment is
defective under CPL 200.50 (7) (e), he did not challenge the
indictment on that ground in a motion to dismiss the indictment within
45 days of arraignment (see CPL 210.20 [1] [a]; 255.20 [1]; People v
Marshall, 299 AD2d 809, 810), and he therefore failed to preserve his
contention for our review (see People v Slingerland, 101 AD3d 1265,
1265-1266, lv denied 20 NY3d 1104).

     Defendant further contends that the jury instruction with respect
to the elements of the crime of which he was convicted was erroneous
because it allowed the jury to convict him on an uncharged theory of
the crime. Preliminarily, contrary to the People’s contention,
defendant was not required to preserve his contention for our review
because he “ ‘has a fundamental and nonwaivable right to be tried only
on the crimes charged’ ” (People v Graves, 136 AD3d 1347, 1348, lv
denied 27 NY3d 1069). We nonetheless reject his contention. When
charging a defendant with a burglary, “[i]f the People expressly
limit[ ] their theory of the ‘intent to commit a crime therein’
element to a particular crime, then they [must] prove that the
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defendant intended to commit that crime” (People v Lewis, 5 NY3d 546,
552 n 7; see People v James, 114 AD3d 1202, 1204, lv denied 22 NY3d
1199). “Where the court’s jury instruction on a particular count
erroneously contains an additional theory that differs from the theory
alleged in the indictment . . . and the evidence adduced at trial
could have established either theory, reversal of the conviction on
that count is required because there is a possibility that the jury
could have convicted the defendant upon the uncharged theory” (Graves,
136 AD3d at 1348; see People v Martinez, 83 NY2d 26, 32-35, cert
denied 511 US 1137). Although we agree with defendant that the People
expressly limited their theory of defendant’s intent to commit a crime
therein to his intent to commit the crime of sexual abuse in the first
degree (Penal Law § 130.65 [1]), we reject defendant’s contention that
the jury instruction allowed the jurors to convict him if they found
that he had only a general criminal intent at the time that he entered
the victim’s apartment. We conclude that the court properly
instructed the jurors that they could convict defendant only if they
found that he intended to commit the crime of sexual abuse in the
first degree at the time he entered the victim’s apartment.

     Contrary to defendant’s further contention, we conclude that the
court properly denied his request to charge the jury on renunciation.
“[O]nce the crime in question was committed, the defense of
renunciation is not available as an affirmative defense” (People v
Stevens, 65 AD3d 759, 763, lv denied 13 NY3d 839; see Penal Law
§ 40.10 [3]). A burglary is complete at the moment of the unlawful
entry with the appropriate mens rea (see generally James, 114 AD3d at
1204), and we conclude that there is no reasonable view of the
evidence that entitled defendant to a renunciation charge (see People
v Franco, 287 AD2d 367, 367-368, lv denied 97 NY2d 681; cf. People v
Ervin, 57 AD3d 1398, 1399).

      Defendant contends that the court erred in permitting the victim
and the victim’s friend to testify about the substance of the victim’s
disclosure under the prompt outcry exception to the hearsay rule (see
generally People v McDaniel, 81 NY2d 10, 16-17). Even assuming,
arguendo, that the minimal details to which the victim and the
victim’s friend testified went beyond the scope of what is allowable
under this exception to the hearsay rule, we conclude that the error
is harmless. The proof of defendant’s guilt is overwhelming, and
there is no significant probability that he would have been acquitted
but for the error (see generally People v Crimmins, 36 NY2d 230, 241-
242).

     Defendant concedes that his contention that he was denied a fair
trial by prosecutorial misconduct on summation is not preserved for
our review inasmuch as no objection was made to the allegedly improper
remarks (see People v Jones, 114 AD3d 1239, 1241, lv denied 23 NY3d
1038, 25 NY3d 1166), and we decline to exercise our power to review
that contention as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]). Furthermore, viewing the evidence, the law,
and the circumstances of this particular case, in totality and as of
the time of the representation, we conclude that defense counsel
provided defendant with meaningful representation (see generally
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                                                          KA 14-00196

People v Baldi, 54 NY2d 137, 147).   Finally, defendant’s sentence is
not unduly harsh or severe.




Entered:   March 24, 2017                        Frances E. Cafarell
                                                 Clerk of the Court
