| People v Smalls |
| 2012 NY Slip Op 07496 [100 AD3d 1428] |
| November 9, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ErvinJ. Smalls, Jr., Appellant. (Appeal No. 1.) |
—[*1] Ervin J. Smalls, Jr., defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.),rendered April 22, 2008. The judgment convicted defendant, upon a jury verdict, of burglary inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon ajury verdict of burglary in the second degree (Penal Law § 140.25 [2]) and, in appeal No.2, he appeals from a judgment convicting him upon his plea of guilty of burglary in the thirddegree (§ 140.20). We agree with defendant in appeal No. 1 that Supreme Court erred inallowing the People to present the testimony of a police officer that bolstered the complainant'sidentification testimony, because such testimony "provid[ed] official confirmation of thecomplainant's identification of the defendant" (People v German, 45 AD3d 861, 862 [2007], lv denied 9NY3d 1034 [2008]; see People vMcCullen, 63 AD3d 1708, 1709 [2009], lv denied 13 NY3d 747 [2009]). Wefurther conclude, however, that the error is harmless (see generally People v Crimmins,36 NY2d 230, 241-242 [1975]). "[T]he bolstering testimony . . . confirmed only thebald fact of the identification. It went into no particulars of such identification or the means bywhich the victim reached her conclusion. Beyond the fact that she did identify him, there wasnothing to shore up the reliability or probative worth of her identification. Unquestionablydefendant had been identified; the erroneously admitted bolstering testimony went no furtherthan to corroborate that uncontroverted fact" (People v Johnson, 57 NY2d 969, 971[1982]). We further note that defense counsel conceded those facts in his opening statement andstated that the complainant told the officer that defendant was the perpetrator.
Contrary to the further contention of defendant in appeal No. 1, viewing the evidence in lightof the elements of the crime 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]). "The credibility of the victim and the weight to be accorded her [*2]testimony were matters for the jury" (People v Halwig, 288AD2d 949, 949 [2001], lv denied 98 NY2d 710 [2002]; see People v McCray, 96 AD3d1480, 1480 [2012]; People vGray, 15 AD3d 889, 890 [2005], lv denied 4 NY3d 831 [2005]). Furthermore,"[d]efendant was identified by the victim, who was acquainted with defendant and knew him byname" (People v Ortiz, 50 AD3d336, 336 [2008], lv denied 10 NY3d 962 [2008]; see People v Noakes, 57 AD3d 280, 281 [2008], lv denied12 NY3d 786 [2009]).
Defendant also contends in appeal No. 1 that the court erred in admitting evidence ofconsciousness of guilt and in failing to give a proper jury instruction with respect to thatevidence. Defendant failed to object on the grounds raised on appeal, and he thus failed topreserve those contentions for our review (see People v Smith, 90 AD3d 1565, 1567 [2011], lv denied18 NY3d 998 [2012]; see generallyPeople v McMillon, 77 AD3d 1375, 1375-1376 [2010], lv denied 16 NY3d 897[2011]; People v Smith, 24 AD3d1253, 1253 [2005], lv denied 6 NY3d 818 [2006]). We decline to exercise our powerto review those contentions as a matter of discretion in the interest of justice (see CPL470.15 [6] [a]).
Although we agree with the further contention of defendant in appeal No. 1 that theprosecutor improperly shifted the burden of proof to him based on a comment on summation, weconclude that the prosecutor's "single improper comment was not so egregious that defendantwas thereby deprived of a fair trial" (People v Willson, 272 AD2d 959, 960 [2000], lvdenied 95 NY2d 873 [2000]). We note in particular that the court sustained defendant'sobjection to the improper comment and instructed the jury to disregard it, and the jury ispresumed to have followed the court's instructions (see generally People v Wallace, 59 AD3d 1069, 1070 [2009], lvdenied 12 NY3d 861 [2009]). Moreover, "the court clearly and unequivocally instructed thejury that the burden of proof on all issues remained with the prosecution" (People v Pepe,259 AD2d 949, 950 [1999], lv denied 93 NY2d 1024 [1999]; see People v Matthews, 27 AD3d1115, 1116 [2006]).
The sentences imposed in appeal Nos. 1 and 2 are not unduly harsh or severe. We haveconsidered defendant's remaining contentions, including those raised in his pro se supplementalbrief, and conclude that they are without merit. Present—Scudder, P.J., Smith, Fahey,Carni and Valentino, JJ.