        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, 241-
242). 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
