Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. Rickie J. ROBINSON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict 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 establish that he intended to steal the property at issue or that the value of that property was greater than $1,000 ( see generally People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Contrary to defendant's further contention, the testimony of an accomplice was adequately corroborated inasmuch as surveillance video footage, as well as 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 N.Y.3d 188, 192, 906 N.Y.S.2d 788, 933 N.E.2d 186, quoting People v. Dixon, 231 N.Y. 111, 116, 131 N.E. 752; seeCPL 60.22[1] ). We conclude that, viewing the evidence in light of the elements of the crime as charged to the jury, the verdict is not against the weight of the evidence ( see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Although we agree with defendant that County Court abused its discretion in refusing to admit in evidence a noncollateral prior inconsistent statement of an accomplice who testified for the prosecution ( see People v. Duncan, 46 N.Y.2d 74, 80, 412 N.Y.S.2d 833, 385 N.E.2d 572, rearg. denied46 N.Y.2d 940, 415 N.Y.S.2d 1027, 388 N.E.2d 372, cert. denied442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275), we conclude that the error “is harmless inasmuch as the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant otherwise would have been acquitted” (People v. Cartledge, 50 A.D.3d 1555, 1555–1556, 855 N.Y.S.2d 797, lv. denied10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Likewise, to the extent that the court erred in refusing to admit in evidence a notarized document signed by an accomplice, we conclude that the error is harmless ( see Cartledge, 50 A.D.3d at 1555–1556, 855 N.Y.S.2d 797; see generally Crimmins, 36 N.Y.2d at 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
Defendant contends that he was deprived of a fair trial by prosecutorial misconduct based on two comments made by the prosecutor on summation. Defendant's challenge to the first comment is unpreserved for our review inasmuch as defendant's “objection[ ] w[as] sustained without any request for a curative instruction and the court is thus deemed to have corrected any error to defendant's satisfaction” (People v. Ennis, 107 A.D.3d 1617, 1620, 969 N.Y.S.2d 284). We decline to exercise our power to review defendant's contention with respect to that comment as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ). Although we agree with defendant that the prosecutor's second comment impermissibly shifted the burden of proof, we conclude that the comment “w[as] not so ... egregious as to deny defendant a fair trial” (People v. Rogers, 103 A.D.3d 1150, 1153–1154, 958 N.Y.S.2d 835, lv. denied21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142). Furthermore, “the court clearly and unequivocally instructed the jury that the burden of proof on all issues remained with the prosecution” (People v. Pepe, 259 A.D.2d 949, 950, 689 N.Y.S.2d 310, lv. denied93 N.Y.2d 1024, 697 N.Y.S.2d 583, 719 N.E.2d 944).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.