ROBINSON, RICKIE J., PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [1155] KA 11-02183 PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER 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. 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, of grand 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 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 NY3d 342, 349 ; People v Bleakley, 69 NY2d 490, 495 ). 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 NY3d 188, 192 , quoting People v Dixon, 231 NY 111, 116 ; see CPL 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 NY3d at 349 ; see generally Bleakley, 69 NY2d at 495 ). 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 NY2d 74, 80 , rearg denied 46 NY2d 940 , cert denied 442 US 910 ), we conclude that the error “is harmless inasmuch as the evidence of defendant’s guilt is overwhelming, and -2- 1155 KA 11-02183 there is no significant probability that defendant otherwise would have been acquitted” (People v Cartledge, 50 AD3d 1555, 1555-1556 , lv denied 10 NY3d 957 ; see generally People v Crimmins, 36 NY2d 230 , 241242). 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 AD3d at 1555 - 1556; see generally Crimmins, 36 NY2d at 241-242 ). 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 AD3d 1617, 1620 ). 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 (see CPL 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 AD3d 1150, 1153-1154 , lv denied 21 NY3d 946 ). 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 AD2d 949, 950 , lv denied 93 NY2d 1024 ). Entered: November 8, 2013 Frances E. Cafarell Clerk of the Court