People v Lynch

People v Lynch 2015 NY Slip Op 06960 Decided on September 29, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 29, 2015
Friedman, J.P., Andrias, Saxe, Gische, Kapnick, JJ.
15704 5935/12

[*1] 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.

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 NY2d 614, 618-19 [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 AD3d 483 [1st Dept 2009], lv denied 12 [*2]NY3d 822 [2009]; People v Bell, 259 AD2d 429 [1st Dept 1999], lv denied 93 NY2d 922 [1999]).

We perceive no basis for reducing the sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 29, 2015

CLERK