Opinion
2012-11-9
The PEOPLE of the State of New York, Respondent, v. Ervin J. SMALLS, Jr., Defendant–Appellant. (Appeal No. 1.)
Timothy P. Donaher, Public Defender, Rochester (Mark C. Davison of Counsel), for Defendant–Appellant. Ervin J. Smalls, Jr., Defendant–Appellant pro se.
Timothy P. Donaher, Public Defender, Rochester (Mark C. Davison of Counsel), for Defendant–Appellant. Ervin J. Smalls, Jr., Defendant–Appellant pro se.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him upon a jury 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 third degree (§ 140.20). We agree with defendant in appeal No. 1 that Supreme Court erred in allowing the People to present the testimony of a police officer that bolstered the complainant's identification testimony, because such testimony “ provid[ed] official confirmation of the complainant's identification of the defendant” ( People v. German, 45 A.D.3d 861, 862, 846 N.Y.S.2d 348,lv. denied9 N.Y.3d 1034, 852 N.Y.S.2d 19, 881 N.E.2d 1206;see People v. McCullen, 63 A.D.3d 1708, 1709, 881 N.Y.S.2d 577,lv. denied13 N.Y.3d 747, 886 N.Y.S.2d 101, 914 N.E.2d 1019). We further conclude, however, that the error is harmless ( see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787). “[T]he bolstering testimony ... confirmed only the bald fact of the identification. It went into no particulars of such identification or the means by which the victim reached her conclusion. Beyond the fact that she did identify him, there was nothing to shore up the reliability or probative worth of her identification. Unquestionably defendant had been identified; the erroneously admitted bolstering testimony went no further than to corroborate that uncontroverted fact” ( People v. Johnson, 57 N.Y.2d 969, 971, 457 N.Y.S.2d 230, 443 N.E.2d 478). We further note that defense counsel conceded those facts in his opening statement and stated 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 light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “The credibility of the victim and the weight to be accorded her testimony were matters for the jury” ( People v. Halwig, 288 A.D.2d 949, 949, 732 N.Y.S.2d 208,lv. denied98 N.Y.2d 710, 749 N.Y.S.2d 8, 778 N.E.2d 559;see People v. McCray, 96 A.D.3d 1480, 1480, 946 N.Y.S.2d 744;People v. Gray, 15 A.D.3d 889, 890, 788 N.Y.S.2d 792,lv. denied4 N.Y.3d 831, 796 N.Y.S.2d 586, 829 N.E.2d 679). Furthermore, “[d]efendant was identified by the victim, who was acquainted with defendant and knew him by name” ( People v. Ortiz, 50 A.D.3d 336, 336, 855 N.Y.S.2d 88,lv. denied10 N.Y.3d 962, 863 N.Y.S.2d 146, 893 N.E.2d 452;see People v. Noakes, 57 A.D.3d 280, 281, 869 N.Y.S.2d 424,lv. denied12 N.Y.3d 786, 879 N.Y.S.2d 63, 906 N.E.2d 1097).
Defendant also contends in appeal No. 1 that the court erred in admitting evidence of consciousness of guilt and in failing to give a proper jury instruction with respect to that evidence. Defendant failed to object on the grounds raised on appeal, and he thus failed to preserve those contentions for our review ( see People v. Smith, 90 A.D.3d 1565, 1567, 935 N.Y.S.2d 775,lv. denied18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009;see generally People v. McMillon, 77 A.D.3d 1375, 1375–1376, 909 N.Y.S.2d 267,lv. denied16 N.Y.3d 897, 926 N.Y.S.2d 33, 949 N.E.2d 981;People v. Smith, 24 A.D.3d 1253, 1253, 806 N.Y.S.2d 825,lv. denied6 N.Y.3d 818, 812 N.Y.S.2d 458, 845 N.E.2d 1289). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
Although we agree with the further contention of defendant in appeal No. 1 that the prosecutor improperly shifted the burden of proof to him based on a comment on summation, we conclude that the prosecutor's “single improper comment was not so egregious that defendant was thereby deprived of a fair trial” ( People v. Willson, 272 A.D.2d 959, 960, 708 N.Y.S.2d 668,lv. denied95 N.Y.2d 873, 715 N.Y.S.2d 228, 738 N.E.2d 376). We note in particular that the court sustained defendant's objection to the improper comment and instructed the jury to disregard it, and the jury is presumed to have followed the court's instructions ( see generally People v. Wallace, 59 A.D.3d 1069, 1070, 873 N.Y.S.2d 403,lv. denied12 N.Y.3d 861, 881 N.Y.S.2d 672, 909 N.E.2d 595). Moreover, “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;see People v. Matthews, 27 A.D.3d 1115, 1116, 811 N.Y.S.2d 514).
The sentences imposed in appeal Nos. 1 and 2 are not unduly harsh or severe. We have considered defendant's remaining contentions, including those raised in his pro se supplemental brief, and conclude that they are without merit.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.