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

307
KA 09-00069
PRESENT: SCUDDER, P.J., SMITH, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

RAKEEM J. GOLSON, DEFENDANT-APPELLANT.


ANTHONY J. LANA, BUFFALO, FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered October 21, 2008. The judgment convicted
defendant, upon a jury verdict, of conspiracy in the fourth degree
(two counts), burglary in the first degree (five counts), burglary in
the second degree, robbery in the first degree (six counts), robbery
in the second degree (two counts) and assault in the second degree
(two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of burglary in the second degree and dismissing count eight
of the indictment as and modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of, inter alia, two counts of conspiracy in the
fourth degree (Penal Law § 105.10 [1]) and five counts of burglary in
the first degree (§ 140.30 [2 - 4]). As a preliminary matter, as we
noted in the appeal of defendant’s codefendant, count eight, charging
defendant with burglary in the second degree under Penal Law § 140.25
(2), “must be dismissed as a lesser inclusory count of counts three
through seven, charging defendant with burglary in the first degree”
(People v Clark, 90 AD3d 1576, 1577). We therefore modify the
judgment accordingly.

     Contrary to defendant’s contention, viewing the evidence in light
of the elements of the remaining crimes as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is
not against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495). Defendant was identified by only two
prosecution witnesses; one is a drug addict who also was indicted for
these crimes and who received a favorable plea agreement in exchange
for her testimony, and the other has a lengthy criminal record. Thus,
we agree with defendant that another result would not have been
                                 -2-                           307
                                                         KA 09-00069

unreasonable (see id. at 495). Nevertheless, we further conclude
that, upon weighing the “ ‘relative strength of conflicting inferences
that may be drawn from the testimony,’ ” the jury did not fail to give
the evidence the weight it should be accorded (id.).

     Because he failed to object in a timely manner to the
prosecutor’s failure to correct the testimony of a prosecution witness
that she did not receive any benefit for her testimony, defendant
failed to preserve for our review his contention that the People’s
failure to correct that testimony deprived him of a fair trial (see
People v Hendricks, 2 AD3d 1450, 1451, lv denied 2 NY3d 762). In any
event, we conclude that, although the prosecutor has an obligation “to
correct misstatements by a witness concerning the nature of a promise”
(People v Novoa, 70 NY2d 490, 496), the error in failing to do so here
is harmless because County Court instructed the jury that the witness
also had been indicted for these crimes and had been permitted to
plead guilty to lesser offenses in exchange for her testimony (see
generally Hendricks, 2 AD3d at 1451).

     We also reject defendant’s contention that the court erred in
permitting the People to present the testimony of a police witness
regarding the out-of-court identification of defendant by a
prosecution witness (see CPL 60.25). During her testimony, the
witness mistakenly identified the codefendant as defendant, and
explained that defendant had long hair with braids at the time of the
crime. It is undisputed that defendant’s hair was short at the time
of the trial. Thus, based upon defendant’s change of appearance, the
court properly determined that the witness was unable to identify
defendant on the basis of present recollection (see generally People v
Quevas, 81 NY2d 41, 45-46; People v Nival, 33 NY2d 391, 394-395,
appeal dismissed and cert denied 417 US 903).




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
