Opinion
KA 99-05190
May 3, 2002.
Appeal from a judgment of Supreme Court, Erie County (Buscaglia, J.), entered December 22, 1998, convicting defendant after a jury trial of, inter alia, robbery in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of, inter alia, robbery in the first degree (Penal Law § 160.15) and burglary in the first degree (§ 140.30 [4]). Contrary to the contention of defendant, he was not denied his right to equal protection by the prosecutor's exercise of two peremptory challenges. Supreme Court's determination that the explanations offered by the prosecutor for those peremptory challenges were race-neutral is entitled to great deference ( see People v. Carelock, 278 A.D.2d 851, 851, lv denied 96 N.Y.2d 757; see generally People v. Payne, 88 N.Y.2d 172, 183).
Although we agree with defendant that the testimony of a police officer improperly bolstered the identification testimony of the victim, we conclude that the error is harmless. The identification testimony of the victim was strong, and there is no significant probability that defendant would have been acquitted but for the error ( see People v. Lombardo, 195 A.D.2d 965, 966, lv denied 82 N.Y.2d 806; see generally People v. Crimmins, 36 N.Y.2d 230, 241-242). We also agree with defendant that the prosecutor engaged in misconduct during her summation by, inter alia, denigrating the defense and impugning the integrity of defense counsel ( see People v. Paul, 229 A.D.2d 932, 933). "It would seem, by now, unnecessary to emphasize again that the duty of the prosecutor is to honor established legal principles, not to secure conviction by any and all means" ( id). We conclude, however, that reversal is not required based on that misconduct. The evidence of defendant's guilt is overwhelming and the summation did not "tip the scales" against defendant ( People v Tolbert, 198 A.D.2d 132, 134, lv denied 83 N.Y.2d 811). Thus, we conclude that the prosecutor's misconduct did not deny defendant a fair trial ( cf. People v. Mott, 94 A.D.2d 415, 421). Defendant failed to preserve for our review his contention that the prosecutor impermissibly shifted the burden of proof during her summation ( see CPL 470.05), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). Defendant also failed to preserve for our review his contention that the prosecutor's improper impeachment of the credibility of a witness denied him a fair trial ( see 470.05 [2]), and in any event that contention lacks merit. We have considered defendant's remaining contentions and conclude that they are without merit.