| People v Lofton |
| 2015 NY Slip Op 07072 [132 AD3d 1242] |
| October 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDavid Lofton, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Brian Shiffrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered August 9, 2011. The judgment convicted defendant as a juvenile offender,upon a jury verdict, of criminal sexual act in the first degree and burglary in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the surcharge and DNA data bank fee and as modified the judgmentis affirmed.
Memorandum: Defendant appeals from a judgment convicting him as a juvenileoffender, following a jury trial, of criminal sexual act in the first degree (Penal Law§ 130.50 [1]) and burglary in the second degree (§ 140.25[2]). Defendant contends that the prosecutor's remarks on summation shifted the burdenof proof and denied him a fair trial. We reject that contention. "The prosecutor'scomments on summation did not shift the burden of proof to defendant, and theyconstituted either fair comment on the evidence or a fair response to defense counsel'ssummation" (People vColeman, 32 AD3d 1239, 1240 [2006], lv denied 8 NY3d 844 [2007];see People v Miller, 104AD3d 1223, 1224 [2013], lv denied 21 NY3d 1017 [2013]). In any event,any misconduct that may have occurred "was not so egregious as to deprive defendant ofa fair trial" (People v Tolliver, 267 AD2d 1007, 1008 [1999], lv denied94 NY2d 908 [2000]; seePeople v Walker, 117 AD3d 1441, 1442 [2014], lv denied 23 NY3d1044 [2014]).
Contrary to defendant's contention, Supreme Court made a determination on therecord that defendant was not an eligible youth for youthful offender treatment (seeCPL 720.10 [2] [a] [iii]; [3]; People v Middlebrooks, 25 NY3d 516, 527 [2015]), andthe sentence is not unduly harsh or severe. As the People correctly concede, however, thesurcharge and DNA data bank fee are illegal and must be vacated because defendant wassentenced as a juvenile offender (see Penal Law §§ 60.00 [2];60.10; People v Stump, 100AD3d 1457, 1458 [2012], lv denied 20 NY3d 1104 [2013]). We thereforemodify the judgment accordingly. Present—Scudder, P.J., Smith, Centra,Peradotto and Carni, JJ.