PEOPLE v. ANDERSON (2008)

Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered August 31, 2005, upon a verdict convicting defendant of the crime of burglary in the second degree.

Defendant stands convicted of burglary in the second degree stemming from his role in the nighttime break-in of the home of a Columbia County couple for the purpose of stealing money.¹  After denying defendant's request to receive youthful offender status, defendant was sentenced to 6 1/212 years in prison and five years of postrelease supervision.   He now appeals.

 We are unpersuaded with defendant's claim that pretrial prosecutorial misconduct concerning the failure to timely produce discoverable material, coupled with two prejudicial remarks during summation, warrant a new trial.   In each instance of misconduct, County Court properly ameliorated any prejudice to defendant.   Thus, we are unable to conclude that he was denied a fair trial (see People v. Galloway, 54 N.Y.2d 396, 399-400, 446 N.Y.S.2d 9, 430 N.E.2d 885 [1981];  People v. Arce, 42 N.Y.2d 179, 187, 397 N.Y.S.2d 619, 366 N.E.2d 279 [1977];  People v. Weber, 40 A.D.3d 1267, 1268, 836 N.Y.S.2d 327 [2007], lv. denied 9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901 [2007];  People v. White, 173 A.D.2d 897, 569 N.Y.S.2d 816 [1991], lv. denied 78 N.Y.2d 976, 574 N.Y.S.2d 956, 580 N.E.2d 428 [1991];  People v. Blair, 148 A.D.2d 767, 769, 538 N.Y.S.2d 344 [1989], lv. denied 74 N.Y.2d 661, 543 N.Y.S.2d 404, 541 N.E.2d 433 [1989];  People v. Demming, 116 A.D.2d 886, 887-888, 498 N.Y.S.2d 203 [1986], lv. denied 67 N.Y.2d 941, 502 N.Y.S.2d 1033, 494 N.E.2d 118 [1986] ).

First, as a result of the People's discovery violations, County Court ordered them to open their entire file to defense counsel and further postponed commencement of the trial to permit such review.   We find that this sanction accomplished the goal of eliminating prejudice to defendant while also protecting society's interests (see People v. Kelly, 62 N.Y.2d 516, 520, 478 N.Y.S.2d 834, 467 N.E.2d 498 [1984] ).   Moreover, on each occasion that an inappropriate comment was made during summation, County Court promptly sustained defense counsel's objection to the comment and instructed the jury to disregard it (see People v Weber, supra;  People v. Smith, 27 A.D.3d 894, 898-899, 811 N.Y.S.2d 488 [2006], lv. denied 6 N.Y.3d 898, 817 N.Y.S.2d 633, 850 N.E.2d 680 [2006] ).   Following the second such comment, and at the request of defense counsel, the court also provided a detailed curative instruction to the jury.   Of note, this instruction was found to be acceptable to defense counsel. Under these circumstances, the prosecutorial misconduct, viewed alone or collectively, does not warrant a new trial (see People v. Kirker, 21 A.D.3d 588, 589-590, 799 N.Y.S.2d 634 [2005], lv. denied 5 N.Y.3d 853, 806 N.Y.S.2d 173, 840 N.E.2d 142 [2005] ).

 Lastly, defendant claims that County Court abused its discretion in denying him youthful offender status.   We are unpersuaded.   The nature of the crime-a premeditated home invasion in the middle of the night by five people-was extremely serious.   Moreover, defendant played a key role in selecting this couple-who cared for him throughout childhood, employed his father for over two decades and otherwise provided a great deal of support to his family-as the target of the quintet's decision to obtain money by stealing.   Finally, he has a juvenile legal history and the Probation Department did not recommend youthful offender treatment.   Given these factors, we find no abuse of discretion in County Court's decision to deny defendant's request for youthful offender status (see CPL 720.20[1][a];  People v. Lacelle, 19 A.D.3d 869, 870, 797 N.Y.S.2d 612 [2005];  People v. Knowles, 12 A.D.3d 939, 941, 785 N.Y.S.2d 561 [2004];  People v. Ferguson, 285 A.D.2d 901, 901-902, 729 N.Y.S.2d 799 [2001], lv. denied 96 N.Y.2d 939, 733 N.Y.S.2d 379, 759 N.E.2d 378 [2001];  People v. Chappelle, 282 A.D.2d 881, 881-882, 726 N.Y.S.2d 465 [2001];  People v. Mettler, 259 A.D.2d 834, 835, 687 N.Y.S.2d 205 [1999];  People v. Morris, 220 A.D.2d 808, 808-809, 632 N.Y.S.2d 231 [1995], lv. denied 87 N.Y.2d 976, 642 N.Y.S.2d 205, 664 N.E.2d 1268 [1996] ).   We are further unpersuaded that defendant's sentence was harsh or excessive and find no extraordinary circumstances warranting a reduction in the interest of justice.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   During the course of this home invasion, the husband was fatally stabbed.   A codefendant was tried separately and stands convicted of murder in the second degree and burglary in the second degree (People v. DeJesus, 45 A.D.3d 986, 845 N.Y.S.2d 517 [2007] ).

CARPINELLO, J.

PETERS, J.P., ROSE, KANE and MALONE, JJ., concur.