        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

228
KA 09-00276
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DALE A. BENTON, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET SOMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered January 7, 2009. The judgment convicted
defendant, upon a jury verdict, of robbery in the first 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 robbery in the first degree (Penal Law § 160.15
[4]). Defendant’s contention that prosecutorial misconduct during
voir dire warrants reversal of the judgment has not been preserved for
our review (see People v Pritchett, 248 AD2d 967, 968, lv denied 92
NY2d 929). In any event, we conclude that the prosecutor did not
engage in misconduct by attempting to obtain unequivocal assurances
from prospective jurors that they would be able to convict defendant
solely on the basis of the testimony of an 11-year-old eyewitness if
that testimony credibly established the elements of the crime beyond a
reasonable doubt (see People v Calabria, 3 NY3d 80, 82; see also
People v White, 213 AD2d 507, 508, lv denied 86 NY2d 742). Defendant
further contends that he was deprived of a fair trial by prosecutorial
misconduct during summation. Defendant’s contention with respect to
several of the prosecutor’s allegedly improper comments is unpreserved
for our review inasmuch as defendant failed to object to those
comments (see People v Mull, 89 AD3d 1445, 1446, lv denied 19 NY3d
965; People v Freeman, 78 AD3d 1505, 1505, lv denied 15 NY3d 952), and
we decline to exercise our power to review his contention with respect
to those comments as a matter of discretion in the interest of justice
(see CPL 470.15 [6] [a]). We reject defendant’s contention with
respect to the remaining allegedly improper comments made by the
prosecutor during summation. The prosecutor’s references to
defendant’s trial strategy as “smoking mirrors [sic]” do “ ‘not
constitute such a pervasive pattern of misconduct that reversal is
                                 -2-                           228
                                                         KA 09-00276

warranted’ ” (People v Goncalves, 239 AD2d 923, 923, lv denied 91 NY2d
873). Additionally, although the People correctly concede that the
prosecutor’s reference to an unindicted accomplice during summation
was improper, defendant’s prompt objection and County Court’s curative
instruction dispelled any prejudice (see People v Smith, 195 AD2d 951,
951, lv denied 82 NY2d 727). The prosecutor’s comment alluding to
defendant’s failure to call a certain witness on his behalf did not
constitute an impermissible effort to shift the burden of proof
inasmuch as defendant elected to present a defense (see People v
Tankleff, 84 NY2d 992, 994; People v Rivera, 292 AD2d 549, 549, lv
denied 98 NY2d 654). In any event, we note that “ ‘the court clearly
and unequivocally instructed the jury that the burden of proof on all
issues [with respect to the crimes charged] remained with the
prosecution’ ” (People v Matthews, 27 AD3d 1115, 1116).

     We reject defendant’s further contention that the court abused
its discretion in allowing testimony that the eyewitness did not
identify the perpetrator from a large group of photographs that were
assembled based upon her initial description of the perpetrator.
Where “ ‘the reliability of an eyewitness identification is at
issue,’ ” negative identification evidence establishing that a witness
did not identify a suspect as the perpetrator is admissible because it
“ ‘can tend to prove that the eyewitness possessed the ability to
distinguish the particular features of the perpetrator’ ” (People v
Wilder, 93 NY2d 352, 357, quoting People v Bolden, 58 NY2d 741, 744
[Gabrielli, J., concurring]). Here, the People demonstrated that
there were some similarities between the features of the persons in
the photographs shown to the eyewitness and the features of defendant,
i.e., they were the same race and gender as defendant. Thus, the
People established the relevancy of the negative identification
evidence, and the court did not abuse its discretion in concluding
that the probative value of the evidence outweighed any prejudicial
effect (see id. at 357-358).

     Lastly, with respect to defendant’s contention that he was denied
effective assistance of counsel, we conclude that “the evidence, the
law, and the circumstances of [this] particular case, viewed in
totality and as of the time of the representation, reveal that the
attorney provided meaningful representation” (People v Baldi, 54 NY2d
137, 147).




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
