SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

348 

KA 13-00968 

PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ALFRED MACK, DEFENDANT-APPELLANT.

 

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Erie County (Deborah

A. Haendiges, J.), rendered May 16, 2013. The judgment convicted

defendant, upon a jury verdict, of criminal trespass in the second

degree, burglary in the second degree, criminal contempt in the second

degree and criminal contempt in the first degree. 

It 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 criminal trespass in the second degree (Penal

Law § 140.15 [1]), burglary in the second degree (§ 140.25 [2]),

criminal contempt in the second degree (§ 215.50 [3]), and criminal

contempt in the first degree (§ 215.51 [b] [v]). The conviction

arises out of two incidents on the same night in which defendant, in

violation of an order of protection, entered the home of his former

girlfriend and attacked her. We reject defendant’s contention that

Supreme Court erred in denying his request to charge criminal trespass

in the second degree as a lesser included offense of burglary in the

second degree. In order to establish entitlement to a charge on a

lesser included offense, “a defendant must show both that the greater

crime cannot be committed without having concomitantly committed the

lesser by the same conduct, and that a reasonable view of the evidence

supports a finding that he or she committed the lesser, but not the

greater, offense” (People v James, 11 NY3d 886, 888; see People v Van

Norstrand, 85 NY2d 131, 135; People v Glover, 57 NY2d 61, 63; see also

CPL 1.20 [37]; 300.50 [1], [2]). Here, the only reasonable view of

the evidence is that defendant knowingly entered or remained

unlawfully in a dwelling (see Penal Law § 140.15 [1]), intending to

engage in conduct prohibited by the order of protection while in the

banned premises that went beyond criminal trespass, thereby satisfying

the “ ‘intent to commit a crime therein’ element of burglary” (People
-2- 348 

KA 13-00968 

v Lewis, 5 NY3d 546, 548; see also Penal Law § 140.25; People v

Cajigas, 19 NY3d 697, 701-702). Contrary to defendant’s further

contention, “the court properly denied defendant’s request to charge

criminal contempt in the second degree . . . as a lesser included

offense of criminal contempt in the first degree because no reasonable

view of the evidence ‘would support a finding that [defendant]

committed the lesser offense but not the greater’ ” (People v Wilson,

55 AD3d 1273, 1274, lv denied 11 NY3d 931).

We reject defendant’s contention that prosecutorial misconduct on

summation deprived him of a fair trial. Even assuming, arguendo, that

some of the prosecutor’s remarks were improper, we conclude that they

were not so egregious as to deprive defendant of a fair trial, and any

prejudice was alleviated by the court’s prompt curative instruction

and its later instruction that the jury “may not consider sympathy”

(People v Melendez, 11 AD3d 983, 984, lv denied 4 NY3d 888; see People

v Riley, 117 AD3d 1495, 1496, lv denied 24 NY3d 1088). Finally, we

reject defendant’s contention that the court improperly limited his

testimony on redirect examination. The extent of redirect examination

is within the sound discretion of the trial court, and the testimony

sought here was properly excluded because it would not have explained

or clarified any testimony that had been elicited on cross-examination

(see People v Melendez, 55 NY2d 445, 451-453).

Entered: May 8, 2015 Frances E. Cafarell

Clerk of the Court