| People v Golson |
| 2012 NY Slip Op 01958 [93 AD3d 1218] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rakeem J.Golson, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), renderedOctober 21, 2008. The judgment convicted defendant, upon a jury verdict, of conspiracy in thefourth degree (two counts), burglary in the first degree (five counts), burglary in the seconddegree, robbery in the first degree (six counts), robbery in the second degree (two counts) andassault in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby reversing that part convicting defendant of burglary in the second degree and dismissing counteight of the indictment as and modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trial of, interalia, two counts of conspiracy in the fourth degree (Penal Law § 105.10 [1]) and fivecounts of burglary in the first degree (§ 140.30 [2]-[4]). As a preliminary matter, as wenoted in the appeal of defendant's codefendant, count eight, charging defendant with burglary inthe second degree under Penal Law § 140.25 (2), "must be dismissed as a lesser inclusorycount of counts three through seven, charging defendant with burglary in the first degree" (People v Clark, 90 AD3d 1576,1577 [2011]). We therefore modify the judgment accordingly.
Contrary to defendant's contention, viewing the evidence in light of the elements of theremaining crimes as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]). Defendant was identified by only two prosecution witnesses; one is adrug addict who also was indicted for these crimes and who received a favorable plea agreementin exchange for her testimony, and the other has a lengthy criminal record. Thus, we agree withdefendant that another result would not have been unreasonable (see id. at 495).Nevertheless, we further conclude that, upon weighing the " 'relative strength of conflictinginferences that may be drawn from the testimony,' " the jury did not fail to give the evidence theweight it should be accorded (id.).
Because he failed to object in a timely manner to the prosecutor's failure to correct thetestimony of a prosecution witness that she did not receive any benefit for her testimony,defendant failed to preserve for our review his contention that the People's failure to correct that[*2]testimony deprived him of a fair trial (see People v Hendricks, 2 AD3d1450, 1451 [2003], lv denied 2 NY3d 762 [2004]). In any event, we conclude that,although the prosecutor has an obligation "to correct misstatements by a witness concerning thenature of a promise" (People v Novoa, 70 NY2d 490, 496 [1987]), the error in failing todo so here is harmless because County Court instructed the jury that the witness also had beenindicted for these crimes and had been permitted to plead guilty to lesser offenses in exchange forher testimony (see generally Hendricks, 2 AD3d at 1451).
We also reject defendant's contention that the court erred in permitting the People to presentthe testimony of a police witness regarding the out-of-court identification of defendant by aprosecution witness (see CPL 60.25). During her testimony, the witness mistakenlyidentified the codefendant as defendant, and explained that defendant had long hair with braids atthe time of the crime. It is undisputed that defendant's hair was short at the time of the trial. Thus,based upon defendant's change of appearance, the court properly determined that the witness wasunable to identify defendant on the basis of present recollection (see generally People vQuevas, 81 NY2d 41, 45-46 [1993]; People v Nival, 33 NY2d 391, 394-395 [1974],appeal dismissed and cert denied 417 US 903 [1974]). Present—Scudder, P.J.,Smith, Carni and Sconiers, JJ.