People v Burke-Wells

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People v Burke-wells 2015 NY Slip Op 09497 Decided on December 23, 2015 Appellate Division, Fourth 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 December 23, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.
1329 KA 12-00099

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

DARIUS R. BURKE-WELLS, DEFENDANT-APPELLANT.



TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.



Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), rendered November 9, 2011. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25 [2]). Defendant failed to preserve for our review his contention that he was deprived of his right to a fair trial by the testimony of the People's fingerprint analyst on the ground that her testimony "suggest[ed] absolute certainty" and was not presented as an opinion (see generally People v Comerford, 70 AD3d 1305, 1305-1306) and, in any event, we reject that contention. It is well settled that a fingerprint match may provide the basis for a burglary conviction (see People v Safford, 74 AD3d 1835, 1836, lv denied 16 NY3d 746, reconsideration denied 16 NY3d 899), and here the People's fingerprint analyst testified that she matched a known fingerprint belonging to defendant to a latent fingerprint recovered from the entry point at the crime scene. Defendant also failed to preserve for our review his contention that he was deprived of a fair trial based on prosecutorial misconduct (see People v Torres, 125 AD3d 1481, 1484, lv denied 25 NY3d 1172). In any event, we conclude that the prosecutor's comments during summation were a fair response to comments made by defense counsel (see People v Santana, 55 AD3d 1338, 1339, lv denied 12 NY3d 762; People v Beggs, 19 AD3d 1150, 1151, lv denied 5 NY3d 803), and any improprieties with respect to the remaining allegations of misconduct "were not so pervasive or egregious as to deprive defendant of a fair trial" (Torres, 125 AD3d at 1484 [internal quotation marks omitted]).

Finally, defendant's sentence is not unduly harsh or severe.

Entered: December 23, 2015

Frances E. Cafarell

Clerk of the Court