| People v Robinson |
| 2013 NY Slip Op 07377 [111 AD3d 1358] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RickieJ. Robinson, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (James A. W. McLeod, A.J.),rendered August 29, 2011. The judgment convicted defendant, upon a jury verdict, ofgrand larceny in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of grand larceny in the fourth degree (Penal Law §§ 20.00, 155.30[1]). We reject defendant's contention that the evidence is legally insufficient to establishthat he intended to steal the property at issue or that the value of that property was greaterthan $1,000 (see generallyPeople v Danielson, 9 NY3d 342, 349 [2007]; People v Bleakley, 69NY2d 490, 495 [1987]). Contrary to defendant's further contention, the testimony of anaccomplice was adequately corroborated inasmuch as surveillance video footage, as wellas the testimony of a store employee and a police officer who responded to the scene "'tend[ed] to connect the defendant with the commission of the crime in such a way as[could] reasonably satisfy the jury that the accomplice [was] telling the truth' " (People v Reome, 15 NY3d188, 192 [2010], quoting People v Dixon, 231 NY 111, 116 [1921];see CPL 60.22 [1]). We conclude that, viewing the evidence in light of theelements of the crime as charged to the jury, the verdict is not against the weight of theevidence (see Danielson, 9 NY3d at 349; see generally Bleakley, 69NY2d at 495).
Although we agree with defendant that County Court abused its discretion inrefusing to admit in evidence a noncollateral prior inconsistent statement of anaccomplice who testified for the prosecution (see People v Duncan, 46 NY2d 74,80 [1978], rearg denied 46 NY2d 940 [1979], cert denied 442 US 910[1979]), we conclude that the error "is harmless inasmuch as the evidence of defendant'sguilt is overwhelming, and there is no significant probability that defendant otherwisewould have been acquitted" (People v Cartledge, 50 AD3d 1555, 1555-1556 [2008],lv denied 10 NY3d 957 [2008]; see generally People v Crimmins, 36NY2d 230, 241-242 [1975]). Likewise, to the extent that the court erred in refusing toadmit in evidence a notarized document signed by an accomplice, we conclude that theerror is harmless (see Cartledge, 50 AD3d at 1555-1556; see generallyCrimmins, 36 NY2d at 241-242).[*2]
Defendant contends that he was deprived of a fairtrial by prosecutorial misconduct based on two comments made by the prosecutor onsummation. Defendant's challenge to the first comment is unpreserved for our reviewinasmuch as defendant's "objection[ ] w[as] sustained without any request for a curativeinstruction and the court is thus deemed to have corrected any error to defendant'ssatisfaction" (People vEnnis, 107 AD3d 1617, 1620 [2013]). We decline to exercise our power toreview defendant's contention with respect to that comment as a matter of discretion inthe interest of justice (see CPL 470.15 [6] [a]). Although we agree withdefendant that the prosecutor's second comment impermissibly shifted the burden ofproof, we conclude that the comment "w[as] not so . . . egregious as to denydefendant a fair trial" (People vRogers, 103 AD3d 1150, 1153-1154 [2013], lv denied 21 NY3d 946[2013]). Furthermore, "the court clearly and unequivocally instructed the jury that theburden of proof on all issues remained with the prosecution" (People v Pepe, 259AD2d 949, 950 [1999], lv denied 93 NY2d 1024 [1999]).Present—Scudder, P.J., Fahey, Peradotto, Lindley and Valentino, JJ.