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

318
KA 09-01937
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EKISHA N. ALLIGOOD, DEFENDANT-APPELLANT.


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered August 21, 2009. The judgment convicted
defendant, upon a jury verdict, of grand larceny in the third degree
and criminal possession of a forged instrument in the second degree
(six counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of grand larceny in the third degree (Penal Law §
155.35 [1]) and six counts of criminal possession of a forged
instrument in the second degree (§ 170.25). The counts charging
criminal possession of a forged instrument involved six pension checks
payable to defendant’s father, a resident in the long-term care unit
of Monroe Community Hospital (MCH). In 2006, defendant endorsed those
checks to her landlord with the forged signature of her father, in
partial payment of her rent. According to defendant, she negotiated
the checks pursuant to the authority granted her by a power of
attorney executed by her father in 2003. However, the People
established that, in 2004, the bank issuing the pension checks
notified MCH that the father’s checks were being diverted to defendant
under a power of attorney allegedly signed by the father in 2003.
After learning of the diversion of the pension checks, MCH staff
assisted the father in preparing a letter to the issuing bank
directing that the pension checks were to be mailed to him at MCH and
informing the issuing bank that the father had not signed a power of
attorney in 2003 and in fact had revoked a prior power of attorney
executed in 2001. Over defendant’s hearsay objection, Supreme Court
admitted the letter in evidence as a CPLR 4518 (a) “business record.”
Although a defense witness who owned a liquor store testified that
defendant’s father had walked into his store in 2003 and signed a
                                 -2-                           318
                                                         KA 09-01937

document that the store owner notarized, the People established that
in 2003 the father suffered from a number of debilitating medical
conditions that rendered him unable to ambulate on his own, and he had
not in any event left MCH since at least 2001.

     Even assuming, arguendo, that the court erred in admitting in
evidence the letter prepared by MCH staff and signed by the father, we
conclude that any error is harmless. The People presented
overwhelming evidence establishing that the father had not, and could
not have, walked into the liquor store in Rochester in 2003 and
executed a power of attorney naming defendant as his power of
attorney, and there is no significant probability that the jury would
have acquitted defendant if the letter had not been admitted in
evidence (see People v Crimmins, 36 NY2d 230, 241-242; People v
Glover, 4 AD3d 852, 852, lv denied 2 NY3d 740). We agree with
defendant that the court erred in allowing the People to present
expert testimony on the law pertaining to the execution and revocation
of a power of attorney and the duties of the agent thereunder (see
People v Johnson, 76 AD2d 983, 984; see generally Colon v
Rent-A-Center, 276 AD2d 58, 61-62). However, inasmuch as the evidence
overwhelmingly established that the father did not execute the power
of attorney proffered by defendant and there is no significant
probability that the “jury’s verdict . . . would have been different”
without the expert testimony, the error is harmless (People v Clyde,
18 NY3d 145, 154). Defendant failed to preserve for our review the
majority of the instances of alleged prosecutorial misconduct that she
now contends deprived her of a fair trial, and we note that objections
otherwise made by defense counsel were largely sustained by the court,
with no request by defendant for further relief, including a mistrial
(see People v Williams, 8 NY3d 854, 855). In any event, “[r]eversal
on grounds of prosecutorial misconduct ‘is mandated only when the
conduct has caused such substantial prejudice to the defendant that
[s]he has been denied due process of law’ ” (People v Rubin, 101 AD2d
71, 77, lv denied 63 NY2d 711), and that cannot be said here (see id.
at 77-78).




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
