Opinion
KA 02-01976.
November 19, 2004.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered July 29, 2002. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree.
Before: Green, J.P., Hurlbutt, Kehoe, Gorski and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him after a jury trial of burglary in the second degree (Penal Law § 140.25), defendant contends that he was deprived of his right to confront the witnesses against him because County Court curtailed defense counsel's cross-examination of the victim of the burglary on the issue whether the victim's home had been subjected to other burglaries. We reject that contention. "[C]urtailment [of cross-examination] will be judged improper when it keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony" ( People v. Ashner, 190 AD2d 238, 247). In view of the "importance placed on the peculiarities of each case" in determining whether curtailment of cross-examination was proper ( id.), we conclude that the court's curtailment of the cross-examination herein was proper. There is no indication of any connection between the prior burglaries and the facts and circumstances of the burglary for which defendant was on trial ( see generally id. at 246).
We also reject the contention of defendant that he was deprived of a fair trial by the introduction of evidence that, prior to the burglary, defendant threatened the victim and the victim's girlfriend with physical violence as retribution for a physical altercation between defendant's girlfriend and the cousin of the victim's girlfriend. That evidence was relevant on the issue of defendant's motive for committing the crime at issue, and the court properly determined that the probative value of that evidence outweighed its potential for prejudice ( see generally People v. Alvino, 71 NY2d 233, 241-242).
Although we agree with defendant that the unsolicited testimony of the victim that he first met defendant upon defendant's release from jail was inadmissible ( see People v. McCray, 227 AD2d 900, lv denied 89 NY2d 866), we conclude that the court's prompt curative instruction was sufficient to alleviate any prejudice to defendant arising therefrom ( see People v. Brooks, 213 AD2d 999, lv denied 85 NY2d 970). Contrary to defendant's further contention, the court properly refused to charge criminal trespass in the second degree (Penal Law § 140.15) as a lesser included offense of burglary in the second degree. There is no reasonable view of the evidence that defendant entered the building without the intent to commit a crime therein, and thus it cannot be said that "there is a reasonable view of the evidence . . . that would support a finding that he committed the lesser offense but not the greater" ( People v. Glover, 57 NY2d 61, 63). Finally, the sentence is not unduly harsh or severe.