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

1329
KA 12-00099
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DARIUS R. BURKE-WELLS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARK C. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered November 9, 2011. 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: Defendant appeals from a judgment convicting him
upon a jury verdict of burglary in the second degree (Penal Law §
140.25 [2]). Defendant failed to preserve for our review his
contention that he was deprived of his right to a fair trial by the
testimony of the People’s fingerprint analyst on the ground that her
testimony “suggest[ed] absolute certainty” and was not presented as an
opinion (see generally People v Comerford, 70 AD3d 1305, 1305-1306)
and, in any event, we reject that contention. It is well settled that
a fingerprint match may provide the basis for a burglary conviction
(see People v Safford, 74 AD3d 1835, 1836, lv denied 16 NY3d 746,
reconsideration denied 16 NY3d 899), and here the People’s fingerprint
analyst testified that she matched a known fingerprint belonging to
defendant to a latent fingerprint recovered from the entry point at
the crime scene. Defendant also failed to preserve for our review his
contention that he was deprived of a fair trial based on prosecutorial
misconduct (see People v Torres, 125 AD3d 1481, 1484, lv denied 25
NY3d 1172). In any event, we conclude that the prosecutor’s comments
during summation were a fair response to comments made by defense
counsel (see People v Santana, 55 AD3d 1338, 1339, lv denied 12 NY3d
762; People v Beggs, 19 AD3d 1150, 1151, lv denied 5 NY3d 803), and
any improprieties with respect to the remaining allegations of
misconduct “were not so pervasive or egregious as to deprive defendant
of a fair trial” (Torres, 125 AD3d at 1484 [internal quotation marks
omitted]).
                                 -2-                          1329
                                                         KA 12-00099

     Finally, defendant’s sentence is not unduly harsh or severe.




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
