| People v McCullen |
| 2009 NY Slip Op 04826 [63 AD3d 1708] |
| June 12, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v CraigMcCullen, Appellant. |
—[*1] Craig McCullen, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered August21, 2007. The judgment convicted defendant, upon a jury verdict, of grand larceny in the fourthdegree, criminal possession of stolen property in the fourth degree, criminal possession of stolenproperty in the fifth degree and possession of burglar's tools.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by vacating the DNA databank fee and asmodified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, grand larceny in the fourth degree (Penal Law § 155.30 [4]). Defendant failed topreserve for our review the contention in his main and pro se supplemental briefs that CountyCourt erred in allowing the victim to testify with respect to her out-of-court identification ofdefendant (see CPL 470.05 [2]), and we decline to exercise our power to review thatcontention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Weagree with defendant that the court erred in admitting testimony of the arresting officer thatimproperly bolstered the victim's testimony "by providing official confirmation of the [victim'sout-of-court] identification of the defendant" (People v German, 45 AD3d 861, 862 [2007], lv denied 9NY3d 1034 [2008]; see generally People v Trowbridge, 305 NY 471 [1953]). Weconclude that the error is harmless, however, because the evidence of defendant's guilt, withoutreference to the error, is overwhelming, and there is no significant probability that defendantwould have been acquitted but for the error (see German, 45 AD3d at 862; seegenerally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Defendant contends in his main brief that the persistent felony offender statute, i.e., PenalLaw § 70.10, is unconstitutional because it violates his right to a jury trial. We reject thatcontention (see generally People vRivera, 5 NY3d 61, 67 [2005], cert denied 546 US 984 [2005]), and we [*2]further conclude that the court did not abuse its discretion insentencing defendant as a persistent felony offender (see People v Kairis, 37 AD3d 1070 [2007], lv denied 9NY3d 846 [2007]). Contrary to the contention of defendant in his main and pro se supplementalbriefs, the court properly allowed his accomplices to testify with respect to statements that hemade to them following his arrest inasmuch as those statements constituted evidence ofconsciousness of guilt (see People v Violante, 144 AD2d 995, 996 [1988], lvdenied 73 NY2d 897 [1989]). Viewing the evidence in light of the elements of the crimes ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we reject the further contention of defendant inhis main and pro se supplemental briefs that the verdict is against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We have considered theremaining contentions of defendant in his pro se supplemental brief and conclude that they arewithout merit.
We agree with defendant that the instant crimes were committed before the effective dates ofthe amendments to Executive Law § 995, which made the crimes "designated offenses" forpurposes of imposition of the DNA databank fee of $50 (see Executive Law § 995[7]; Penal Law § 60.35 [1] [a] [v]). Thus, the DNA databank fee should not have beenimposed. Although defendant failed to preserve his contention for our review (see CPL470.05 [2]), we exercise our power to review it as a matter of discretion in the interest of justice(see CPL 470.15 [6] [a]), and we therefore modify the judgment accordingly.Present—Hurlbutt, J.P., Centra, Peradotto, Carni and Gorski, JJ.