PEOPLE v. HARRIS

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Freddie HARRIS, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, AND FAHEY, JJ. Timothy P. Donaher, Public Defender, Rochester (Grazina Myers of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Loretta S. Courtney of Counsel), for Respondent.

 On appeal from a judgment convicting him, following a jury trial, of two counts of burglary in the second degree (Penal Law § 140.25[2] ), defendant contends that he was denied the right to a fair trial when the prosecutor impeached his trial testimony by cross-examining him with respect to his pretrial silence concerning exculpatory information omitted from his pretrial statement to the police but included in his direct testimony at trial.   We reject that contention.   Although a prosecutor generally may not use the pretrial silence of a defendant to impeach his or her trial testimony (see People v. Conyers, 52 N.Y.2d 454, 457-459, 438 N.Y.S.2d 741, 420 N.E.2d 933), that general rule does not apply where, as here, “a defendant speaks to the police and omits exculpatory information which he [or she] presents for the first time at trial” (People v. Prashad, 46 A.D.3d 844, 848 N.Y.S.2d 279, lv. denied 10 N.Y.3d 815, 857 N.Y.S.2d 48, 886 N.E.2d 813;  see People v. Bruno, 34 A.D.3d 220, 823 N.Y.S.2d 144, lv. denied 8 N.Y.3d 878, 832 N.Y.S.2d 491, 864 N.E.2d 621;  People v. Mosby, 239 A.D.2d 938, 659 N.Y.S.2d 610, lv. denied 90 N.Y.2d 942, 664 N.Y.S.2d 760, 687 N.E.2d 657;  see generally People v. Savage, 50 N.Y.2d 673, 680-681, 431 N.Y.S.2d 382, 409 N.E.2d 858, cert. denied 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475).   We also reject the contention of defendant that he was denied the right to a fair trial when the prosecutor asked him two questions on cross-examination that violated County Court's Sandoval ruling.   Defendant failed to object to the court's curative instructions with respect to the questions on cross-examination and thus failed to preserve for our review his contention that those instructions were insufficient to alleviate the prejudicial effect of the cross-examination (see People v. Santiago, 52 N.Y.2d 865, 437 N.Y.S.2d 75, 418 N.E.2d 668;  People v. Ware, 28 A.D.3d 1124, 1125, 813 N.Y.S.2d 598, lv. denied 7 N.Y.3d 852, 823 N.Y.S.2d 782, 857 N.E.2d 77).   We note in any event that the jury is presumed to have followed the court's curative instructions (see Ware, 28 A.D.3d at 1125, 813 N.Y.S.2d 598;  People v. Mims, 278 A.D.2d 822, 717 N.Y.S.2d 446, lv. denied 96 N.Y.2d 832, 729 N.Y.S.2d 453, 754 N.E.2d 213).   Finally, the sentence is not unduly harsh or severe.

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

MEMORANDUM: