Opinion
November 10, 1987
Appeal from the Supreme Court, Onondaga County, Murray, J.
Present — Dillon, P.J., Callahan, Green, Pine and Lawton, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant's arguments that the evidence was insufficient to support his conviction for burglary in the second degree, that the court abused its discretion in its Sandoval ruling (see, People v. Sandoval, 34 N.Y.2d 371), and that he was denied discovery of Rosario material (see, People v. Rosario, 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866, rearg denied 14 N.Y.2d 876, 15 N.Y.2d 765) are all without merit. Nor is a reversal required because of prosecutorial misconduct. Following each instance of alleged misconduct, the court gave appropriate instructions to the jury minimizing the prejudicial effect of any error (People v. Ashwal, 39 N.Y.2d 105). Thus, this is not a case where the prosecutor's misconduct caused such substantial prejudice that defendant was thereby deprived of a fair trial (People v. Galloway, 54 N.Y.2d 396; People v. Rubin, 101 A.D.2d 71).
The judgment must be modified, however, to reverse defendant's conviction of criminal mischief in the third degree and to vacate the sentence imposed thereon. Since that crime was not submitted to the jury, its verdict finding defendant guilty thereof was unlawful.