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

1325
KA 11-01594
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANEUDI VASQUEZ, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered June 27, 2011. The judgment convicted
defendant, upon a jury verdict, of attempted burglary in the second
degree and attempted criminal trespass in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following a jury trial of attempted criminal trespass
in the second degree (Penal Law §§ 110.00, 140.15) and attempted
burglary in the second degree (§§ 110.00, 140.25 [2]) and, in appeal
No. 2, he appeals from a judgment convicting him following the same
jury trial of three counts of burglary in the second degree (§ 140.25
[2]). Defendant contends that Supreme Court erred in denying his
motion to sever the two indictments, as well as the individual counts
of the indictments. We reject that contention. In all of the
offenses, which occurred during a nine-day period, the perpetrator
accessed or attempted to access residences through a window after
mutilating the window screen, and the residences were located in the
same general neighborhood. “Even though the offenses were based upon
[five] separate incidents, proof of one criminal transaction ‘would be
material and admissible as evidence[-]in[-]chief upon a trial’ of the
other charges” (People v Davis, 156 AD2d 969, 970, lv denied 75 NY2d
867, quoting CPL 200.20 [2] [b]; see People v Griffin, 26 AD3d 594,
595, lv denied 7 NY3d 756). Here, as in Davis, the “modus operandi in
all [of the incidents] was sufficiently similar to tend to establish
[the perpetrator’s] identity” (156 AD2d at 970; see generally People v
Beam, 57 NY2d 241, 250), and the evidence of defendant’s commission of
the completed burglaries “was material and relevant on the [attempted
offenses] to establish defendant’s intent to commit a crime” in those
                                 -2-                          1325
                                                         KA 11-01594

residences (Griffin, 26 AD3d at 595).

     We reject the further contention of defendant that he was denied
a fair trial by prosecutorial misconduct on summation. Defendant
specifically challenges two statements, and he failed to preserve for
our review any challenge to the second statement based on his failure
to specify the basis for that objection (see People v Tonge, 93 NY2d
838, 839-840; People v Beggs, 19 AD3d 1150, 1151, lv denied 5 NY3d
803). We nevertheless exercise our power to review defendant’s
challenge to the second statement as well as the first, as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). The
prosecutor began his summation by telling the jury that, although the
length of the trial and the number of witnesses suggested that there
was a question about defendant’s guilt, there was no real question of
defendant’s guilt and the only reason they were all in the courtroom
was “simply because the defendant pled not guilty to the[ ] crimes.”
After defense counsel’s objection to that statement was sustained and
a curative instruction was given to the jury, the prosecutor continued
by stating, “[N]o matter how guilty you are, even if a police officer
actually sees you in the act . . . [,] even if your fresh footprints
in the snow lead directly back to an apartment window that you had
just attempted to burglarize minutes earlier, even if you leave your
fingerprints on property that was moved during the course of three
separate burglaries, our system of justice allows you to plead not
guilty and have a trial.” We agree with defendant that those
statements “inappropriately insinuated that the defendant should not
have elected to exercise his right to a trial because” of the amount
of evidence against him (People v Pagan, 2 AD3d 879, 880), and
“impermissibly denigrated the fact that defendant elected to avail
himself of his due process right to a trial” (People v Rivera, 116
AD2d 371, 373). Contrary to defendant’s contention, however, reversal
is not warranted and would be “ ‘an ill-suited remedy’ ” in this case
(People v Galloway, 54 NY2d 396, 401). The comments were isolated,
and they were not so egregious as to deprive defendant of a fair trial
(see People v Rivera, 281 AD2d 927, 928, lv denied 96 NY2d 906; cf.
Pagan, 2 AD3d at 880-881; Rivera, 116 AD2d at 373-376; see generally
People v Rubin, 101 AD2d 71, 77-78, lv denied 63 NY2d 711). Finally,
we conclude that the sentence, as reduced by operation of law (see
Penal Law § 70.30 [1] [former (e) (i)]), is not unduly harsh and
severe.




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
