Opinion
373 KA 17–00059
04-26-2019
The PEOPLE of the State of New York, Respondent, v. William MCCULLOUGH, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree ( Penal Law § 140.25 [2 ] ). Contrary to defendant's contention, County Court properly denied his request to charge criminal trespass in the second degree (§ 140.15[1] ) as a lesser included offense of burglary in the second degree. We conclude that " ‘[t]here is no reasonable view of the evidence that defendant entered the building without the intent to commit a crime therein’ " ( People v. Carter, 111 A.D.3d 1324, 1324, 974 N.Y.S.2d 833 [4th Dept. 2013], lv denied 22 N.Y.3d 1155, 984 N.Y.S.2d 639, 7 N.E.3d 1127 [2014] ; see People v. Rickett, 94 N.Y.2d 929, 930, 708 N.Y.S.2d 349, 729 N.E.2d 1148 [2000] ; People v. Ferguson, 154 A.D.2d 706, 707, 546 N.Y.S.2d 901 [2d Dept. 1989], lv denied 76 N.Y.2d 788, 559 N.Y.S.2d 993, 559 N.E.2d 687 [1990], cert denied 498 U.S. 947, 111 S.Ct. 362, 112 L.Ed.2d 325 [1990] ) and that "the jurors would have had ‘to resort to sheer speculation’ to so conclude" ( People v. Clarke, 233 A.D.2d 831, 832, 649 N.Y.S.2d 568 [4th Dept. 1996], lv denied 89 N.Y.2d 1010, 658 N.Y.S.2d 248, 680 N.E.2d 622 [1997], reconsideration denied 90 N.Y.2d 856, 661 N.Y.S.2d 183, 683 N.E.2d 1057 [1997] ; see People v. Moore, 60 A.D.3d 787, 787, 875 N.Y.S.2d 177 [2d Dept. 2009], lv denied 12 N.Y.3d 918, 884 N.Y.S.2d 699, 912 N.E.2d 1080 [2009] ).
Contrary to defendant's further contention, we conclude that he received effective assistance of counsel inasmuch as "the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that [his] attorney provided meaningful representation" ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ).
Finally, contrary to defendant's additional contention, we conclude that "[t]he prosecutor's remarks on summation were within the broad bounds of rhetorical comment permissible during summations and did not shift the burden of proof" ( People v. Rivera, 133 A.D.3d 1255, 1256, 18 N.Y.S.3d 813 [4th Dept. 2015], lv denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016] [internal quotation marks omitted] ). The challenged remarks were responsive to defense counsel's opening statement (see People v. Kennedy, 69 A.D.3d 881, 883, 895 N.Y.S.2d 436 [2d Dept. 2010], lv denied 15 N.Y.3d 752, 906 N.Y.S.2d 825, 933 N.E.2d 224 [2010] ; People v. Lopez, 255 A.D.2d 147, 148, 682 N.Y.S.2d 127 [1st Dept. 1998], lv denied 92 N.Y.2d 1034, 684 N.Y.S.2d 499, 707 N.E.2d 454 [1998] ), as well as fair comment on the evidence (see Rivera, 133 A.D.3d at 1256, 18 N.Y.S.3d 813 ). Even assuming, arguendo, that the prosecutor made certain inappropriate remarks, we conclude that they were "not so pervasive or egregious as to deny defendant a fair trial" ( People v. Young, 153 A.D.3d 1618, 1620, 61 N.Y.S.3d 752 [4th Dept. 2017], lv denied 30 N.Y.3d 1065, 71 N.Y.S.3d 15, 94 N.E.3d 497 [2017], reconsideration denied 31 N.Y.3d 1123, 81 N.Y.S.3d 383, 106 N.E.3d 766 [2018] ; see Rivera, 133 A.D.3d at 1257, 18 N.Y.S.3d 813 ).