People v. Lynch — 131 A.D.3d 876

Majority

p. 876

The People of the State of New York, Respondent, v Stephanie Lynch, Appellant.

[16 NYS3d 550]

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

p. 877

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 , 618-619 [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 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.

Concur— Friedman, J.R, Andrias, Saxe, Gische and Kapnick, JJ.

Cases cited

People v. De George 73 NY2d 614 N.Y. 1989-06-06 at 618-619 p. 877
People v. West 58 AD3d 483 N.Y. App. Div. 2009-01-15 p. 877