Opinion
15704, 5935/12.
09-29-2015
The PEOPLE of the State of New York, Respondent, v. Stephanie LYNCH, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Sharmeen Mazumder of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Natalia Bedoya–McGinn of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Sharmeen Mazumder of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Natalia Bedoya–McGinn of counsel), for respondent.
FRIEDMAN, J.P., ANDRIAS, SAXE, GISCHE, KAPNICK, JJ.
Opinion Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered November 25, 2013, convicting defendant, after a jury trial, of grand larceny in the fourth degree, endangering the welfare of a child, and possession of burglar's tools, and sentencing her, as a second felony offender, to an aggregate term of two to four years, unanimously affirmed.
Defendant was not deprived of a fair trial by the prosecutor's summation comments on defendant's failure to make an exculpatory statement. The prosecutor did not make an improper reference to a defendant's failure to speak or cooperate when confronted by law enforcement officials, which is recognized to be of little probative value and to raise risks of substantial prejudice (see People v. De George, 73 N.Y.2d 614, 618–19, 543 N.Y.S.2d 11, 541 N.E.2d 11 [1989] ). Rather, it was a reference to defendant's interactions with store employees who had accused her of shoplifting. In any event, the court provided a suitable remedy by cautioning the jury against shifting the burden of proof, and the court properly exercised its discretion in denying defendant's requests for a mistrial or a more elaborate curative instruction. Defendant was properly adjudicated a second felony offender based on an out of state conviction that was the equivalent of a New York felony conviction. The court properly consulted the accusatory instrument, which establishes that the predicate crime involved the sale of cocaine and not marijuana (see People v. West, 58 A.D.3d 483, 871 N.Y.S.2d 120 [1st Dept.2009], lv. denied 12 N.Y.3d 822, 881 N.Y.S.2d 30, 908 N.E.2d 938 [2009] ; People v. Bell, 259 A.D.2d 429, 687 N.Y.S.2d 136 [1st Dept.1999], lv. denied 93 N.Y.2d 922, 693 N.Y.S.2d 505, 715 N.E.2d 508 [1999] ).
We perceive no basis for reducing the sentence.