SMALLS, JR., ERVIN, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1128
KA 08-01315
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
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.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.
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 in the 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 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 AD3d 861, 862, lv denied 9 NY3d 1034; see People v McCullen, 63
AD3d 1708, 1709, lv denied 13 NY3d 747). We further conclude,
however, that the error is harmless (see generally People v Crimmins,
36 NY2d 230, 241-242). “[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 NY2d 969,
971). We further note that defense counsel conceded those facts in
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KA 08-01315
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 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
generally People v Bleakley, 69 NY2d 490, 495). “The credibility of
the victim and the weight to be accorded her testimony were matters
for the jury” (People v Halwig, 288 AD2d 949, 949, lv denied 98 NY2d
710; see People v McCray, 96 AD3d 1480, 1480; People v Gray, 15 AD3d
889, 890, lv denied 4 NY3d 831). Furthermore, “[d]efendant was
identified by the victim, who was acquainted with defendant and knew
him by name” (People v Ortiz, 50 AD3d 336, 336, lv denied 10 NY3d 962;
see People v Noakes, 57 AD3d 280, 281, lv denied 12 NY3d 786).
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
AD3d 1565, 1567, lv denied 18 NY3d 998; see generally People v
McMillon, 77 AD3d 1375, 1375-1376, lv denied 16 NY3d 897; People v
Smith, 24 AD3d 1253, 1253, lv denied 6 NY3d 818). We decline to
exercise our power to review those contentions as a matter of
discretion in the interest of justice (see CPL 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
AD2d 959, 960, lv denied 95 NY2d 873). 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
AD3d 1069, 1070, lv denied 12 NY3d 861). 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 AD2d 949,
950, lv denied 93 NY2d 1024; see People v Matthews, 27 AD3d 1115,
1116).
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.
Entered: November 9, 2012 Frances E. Cafarell
Clerk of the Court