PEOPLE v. CUNNINGHAM

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

The PEOPLE, etc., Respondent, v. John CUNNINGHAM, Appellant.

2015–12069

Decided: April 24, 2019

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ. Paul Skip Laisure, New York, N.Y. (Lauren E. Jones of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Ellen C. Abbot, Ayelet Sela, and Sharon Y. Brodt of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel Lewis, J.), rendered October 23, 2015, convicting him of burglary in the second degree, possession of burglar's tools, and resisting arrest, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the Supreme Court committed reversible error when, in its charge on burglary in the second degree, it instructed the jury on the portion of Penal Law § 140.25 that imposes liability for “remain[ing] unlawfully” in a dwelling.  The defendant argues that this was improper since the People's case rested solely on the theory that he had unlawfully entered into the dwelling (see People v. Gaines, 74 N.Y.2d 358, 547 N.Y.S.2d 620, 546 N.E.2d 913).  The defendant's contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Mestres, 41 A.D.3d 618, 838 N.Y.S.2d 164).  In any event, “[s]ince the evidence permitted the jury to infer guilt under either theory, unlawful entry or unlawful remaining, the trial court properly charged the jury that it could determine guilt under either theory” (People v. Lafond, 213 A.D.2d 678, 678, 624 N.Y.S.2d 951;  see People v. Faber, 64 A.D.3d 788, 789, 883 N.Y.S.2d 300;  People v. Noniashvili, 285 A.D.2d 657, 728 N.Y.S.2d 392).  Furthermore, the court's charge, taken as a whole, conveyed the correct standard to the jury (see People v. Umali, 10 N.Y.3d 417, 426–427, 859 N.Y.S.2d 104, 888 N.E.2d 1046).

The defendant's contention that the prosecutor made improper remarks during his opening statement and summation is largely unpreserved for appellate review (see CPL 470.05[2];  People v. Giddens, 163 A.D.3d 990, 991, 81 N.Y.S.3d 515).  In any event, we agree with the defendant that certain of the prosecutor's remarks were improper, including those which, among other things, denigrated the defense (see People v. Bunting, 146 A.D.3d 794, 795, 43 N.Y.S.3d 910;  People v. Irving, 130 A.D.3d 844, 846, 15 N.Y.S.3d 62), and could only have been intended to evoke the jury's sympathy (see People v. Cherry, 163 A.D.3d 706, 707, 81 N.Y.S.3d 123;  People v. Casiano, 148 A.D.3d 1044, 1045, 50 N.Y.S.3d 439;  People v. Anderson, 142 A.D.3d 713, 716, 37 N.Y.S.3d 151).  Nonetheless, under the circumstances of this case, the defendant was not deprived of a fair trial by the prosecutor's remarks, and any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that any error in this regard might have contributed to his convictions (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Cherry, 163 A.D.3d at 707, 81 N.Y.S.3d 123;  People v. Bethea, 159 A.D.3d 710, 712, 71 N.Y.S.3d 589).  However, we take this opportunity to emphasize that “summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his [or her] command,” but rather, “[t]here are certain well-defined limits” (People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564;  see People v. Cantoni, 140 A.D.3d 782, 786–787, 34 N.Y.S.3d 454;  People v. Wildrick, 83 A.D.3d 1455, 1458, 920 N.Y.S.2d 540).  Counsel must, among other things, “stay within ‘the four corners of the evidence’ and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” (People v. Bartolomeo, 126 A.D.2d 375, 390, 513 N.Y.S.2d 981, quoting People v. Ashwal, 39 N.Y.2d at 109, 383 N.Y.S.2d 204, 347 N.E.2d 564).

The defendant's contention that the Supreme Court failed to issue a proper adverse inference charge in connection with the People's failure to comply with the procedures set forth in Penal Law § 450.10 is unpreserved for appellate review (see CPL 470.05[2];  People v. Woodberry, 239 A.D.2d 448, 449, 658 N.Y.S.2d 40).  In any event, any error in this regard was harmless, since there was overwhelming evidence of the defendant's guilt, and no significant probability that any error contributed to his convictions (see People v. Crimmins, 36 N.Y.2d at 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel under the New York Constitution because, viewing defense counsel's performance in totality, counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).  Furthermore, the defendant was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674).

MASTRO, J.P., ROMAN, HINDS–RADIX and MALTESE, JJ., concur.

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