People v. Lofton

Timothy P. Donaher, Public Defender, Rochester (Brian Shiffrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

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 A.D.3d 1239, 1240, 821 N.Y.S.2d 316, lv. denied8 N.Y.3d 844, 830 N.Y.S.2d 703, 862 N.E.2d 795; see People v. Miller, 104 A.D.3d 1223, 1224, 960 N.Y.S.2d 584, lv. denied21 N.Y.3d 1017, 971 N.Y.S.2d 500, 994 N.E.2d 396). 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 A.D.2d 1007, 1008, 701 N.Y.S.2d 206, lv. denied94 N.Y.2d 908, 707 N.Y.S.2d 392, 728 N.E.2d 991; see People v. Walker, 117 A.D.3d 1441, 1442, 986 N.Y.S.2d 284, lv. denied23 N.Y.3d 1044, 993 N.Y.S.2d 258, 17 N.E.3d 513).

Contrary to defendant's contention, Supreme Court made a determination on the record that defendant was not an eligible youth for youthful offender treatment ( seeCPL 720.10[2][a][iii]; [3]; People v. Middlebrooks, 25 N.Y.3d 516, 527, 14 N.Y.S.3d 296, 35 N.E.3d 464), 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 ( seePenal Law §§ 60.00[2]; 60.10; People v. Stump, 100 A.D.3d 1457, 1458, 953 N.Y.S.2d 441, lv. denied20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538). We therefore modify the judgment accordingly.

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.