THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAVID LOFTON DEFENDANT APPELLANT (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the surcharge and DNA databank fee and as modified the judgment is affirmed.

Memorandum:  Defendant appeals from a judgment convicting him as a juvenile offender, following a jury trial, of criminal sexual act in the first degree (Penal Law § 130.50[1] ) and burglary in the second degree (§ 140.25[2] ).   Defendant contends that the prosecutor's remarks on summation shifted the burden of proof and denied him a fair trial.   We reject that contention.  “The prosecutor's comments on summation did not shift the burden of proof to defendant, and they constituted either fair comment on the evidence or a fair response to defense counsel's summation” (People v. Coleman, 32 AD3d 1239, 1240, lv denied 8 NY3d 844;  see People v. Miller, 104 AD3d 1223, 1224, lv denied 21 NY3d 1017).   In any event, any misconduct that may have occurred “was not so egregious as to deprive defendant of a fair trial” (People v. Tolliver, 267 A.D.2d 1007, 1008, lv denied 94 N.Y.2d 908;  see People v. Walker, 117 AD3d 1441, 1442, lv denied 23 NY3d 1044).

Contrary to defendant's contention, Supreme Court made a determination on the record that defendant was not an eligible youth for youthful offender treatment (see CPL 720.10[2][a][iii];  [3];  People v. Middlebrooks, 25 NY3d 516, 527), and the sentence is not unduly harsh or severe.   As the People correctly concede, however, the surcharge and DNA databank fee are illegal and must be vacated because defendant was sentenced as a juvenile offender (see Penal Law §§ 60.00[2];  60.10;  People v. Stump, 100 AD3d 1457, 1458, lv denied 20 NY3d 1104).   We therefore modify the judgment accordingly.

Frances E. Cafarell

Clerk of the Court