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

903
KA 11-02367
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVID LOFTON, DEFENDANT-APPELLANT.


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered August 9, 2011. The judgment
convicted defendant as a juvenile offender, upon a jury verdict, of
criminal sexual act in the first degree and burglary in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the surcharge and DNA
databank fee and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him as
a juvenile offender, following a jury trial, of criminal sexual act in
the first degree (Penal Law § 130.50 [1]) and burglary in the second
degree (§ 140.25 [2]). Defendant contends that the prosecutor’s
remarks on summation shifted the burden of proof and denied him a fair
trial. We reject that contention. “The prosecutor’s comments on
summation did not shift the burden of proof to defendant, and they
constituted either fair comment on the evidence or a fair response to
defense counsel’s summation” (People v Coleman, 32 AD3d 1239, 1240, lv
denied 8 NY3d 844; see People v Miller, 104 AD3d 1223, 1224, lv denied
21 NY3d 1017). In any event, any misconduct that may have occurred
“was not so egregious as to deprive defendant of a fair trial” (People
v Tolliver, 267 AD2d 1007, 1008, lv denied 94 NY2d 908; see People v
Walker, 117 AD3d 1441, 1442, lv denied 23 NY3d 1044).

     Contrary to defendant’s contention, Supreme Court made a
determination on the record that defendant was not an eligible youth
for youthful offender treatment (see CPL 720.10 [2] [a] [iii]; [3];
People v Middlebrooks, 25 NY3d 516, 527), and the sentence is not
unduly harsh or severe. As the People correctly concede, however, the
surcharge and DNA databank fee are illegal and must be vacated because
defendant was sentenced as a juvenile offender (see Penal Law §§ 60.00
                                 -2-                           903
                                                         KA 11-02367

[2]; 60.10; People v Stump, 100 AD3d 1457, 1458, lv denied 20 NY3d
1104). We therefore modify the judgment accordingly.




Entered:   October 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
