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

330
KA 09-01819
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PAUL R. CURRIER, DEFENDANT-APPELLANT.


DAVID P. ELKOVITCH, AUBURN, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered August 11, 2009. The judgment convicted
defendant, upon a jury verdict, of burglary in the second degree,
criminal trespass in the second degree (two counts), attempted gang
assault in the second degree, assault in the second degree, conspiracy
in the fourth degree and endangering the welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law and as a matter of discretion in the
interest of justice by reversing those parts convicting defendant of
criminal trespass in the second degree and dismissing those counts of
the indictment, and by reducing the sentence imposed for burglary in
the second degree to a determinate term of incarceration of six years,
and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, one count each of burglary in
the second degree (Penal Law § 140.25 [2]), attempted gang assault in
the second degree (§§ 110.00, 120.06) and assault in the second degree
(§ 120.05 [2]), and two counts of criminal trespass in the second
degree (§ 140.15 [1]). The crimes arise from a beating administered
to the victim by defendant and a group of his friends, all of whom
unlawfully entered the victim’s house while the victim was sleeping.
The theory of the prosecution was that defendant was upset with the
victim for the manner in which he treated defendant’s younger brother
earlier in the evening. Defendant contends that he was denied a fair
trial by prosecutorial misconduct. Defendant failed to preserve for
our review his contention that certain comments made by the prosecutor
denigrated the defense (see People v Jones, 63 AD3d 1582, 1583, lv
denied 13 NY3d 797), and we decline to exercise our power to review
those alleged instances of misconduct as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). With respect to
defendant’s contention that the prosecutor engaged in misconduct by
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                                                         KA 09-01819

asking allegedly improper leading questions, we note that those
questions involved preliminary matters and thus were permissible “to
carry the witness quickly to matters material to the [relevant]
issue[s]” (Prince, Richardson on Evidence § 6-227 [Farrell 11th ed]).

     We agree with defendant, however, that the prosecutor improperly
circumvented the Sandoval ruling issued by County Court by cross-
examining defendant’s girlfriend concerning his arrest record.
Nevertheless, we conclude that the court alleviated any prejudice
arising from that isolated instance of prosecutorial misconduct by its
curative instruction in which the court informed the jury that the
prosecutor was mistaken with respect to the number of defendant’s
arrests and directed it not to consider such evidence (see People v
Murry, 24 AD3d 1319, 1320, lv denied 6 NY3d 815). We otherwise reject
defendant’s contention that he was deprived of a fair trial by
prosecutorial misconduct (see generally People v Rubin, 101 AD2d 71,
77-78).

     By failing to renew his motion for a trial order of dismissal
after presenting evidence, defendant failed to preserve for our review
his contention that the evidence of physical injury is legally
insufficient to support the conviction of assault in the second degree
and attempted gang assault (see People v Hines, 97 NY2d 56, 61, rearg
denied 97 NY2d 678). In any event, we conclude that the evidence,
viewed in the light most favorable to the People (see People v Contes,
60 NY2d 620, 621), is legally sufficient to establish that the victim
suffered the requisite “substantial pain” as a result of the attack
(Penal Law § 10.00 [9]; see People v Goico, 306 AD2d 828, 828-829).
In addition, viewing the evidence in light of the elements of the
crime of assault in the second degree as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is
not against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). By failing to object to the verdict
before the jury was discharged, defendant failed to preserve for our
review his contention that the verdict is repugnant (see People v
Alfaro, 66 NY2d 985, 987; People v Louder, 74 AD3d 1845).

     Although not raised by defendant, the People correctly point out
that the counts charging defendant with criminal trespass in the
second degree are lesser included offenses of burglary in the first
degree (see People v Greene, 291 AD2d 410, lv denied 98 NY2d 651). We
note in any event that preservation of this issue is not required (see
People v Mitchell, 216 AD2d 863, lv denied 86 NY2d 798). We therefore
modify the judgment by reversing those parts convicting defendant of
criminal trespass in the second degree. Finally, we agree with
defendant that the sentence imposed for burglary in the second degree
is unduly harsh and severe. Thus, as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [b]), we modify the judgment
by reducing the sentence for that count to a determinate term of
incarceration of six years.

Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
