SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

307 

KA 09-00069 

PRESENT: SCUDDER, P.J., SMITH, CARNI, AND SCONIERS, JJ. 

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RAKEEM J. GOLSON, DEFENDANT-APPELLANT. 

 

ANTHONY J. LANA, BUFFALO, FOR DEFENDANT-APPELLANT. 

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Niagara County Court (Sara S.

Sperrazza, J.), rendered October 21, 2008. The judgment convicted

defendant, upon a jury verdict, of conspiracy in the fourth degree

(two counts), burglary in the first degree (five counts), burglary in

the second degree, robbery in the first degree (six counts), robbery

in the second degree (two counts) and assault in the second degree

(two counts). 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by reversing that part convicting

defendant of burglary in the second degree and dismissing count eight

of the indictment as and modified the judgment is affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

after a jury trial of, inter alia, two counts of conspiracy in the

fourth degree (Penal Law § 105.10 [1]) and five counts of burglary in

the first degree (§ 140.30 [2 - 4]). As a preliminary matter, as we

noted in the appeal of defendant’s codefendant, count eight, charging

defendant with burglary in the second degree under Penal Law § 140.25

(2), “must be dismissed as a lesser inclusory count of counts three

through seven, charging defendant with burglary in the first degree”

(People v Clark, 90 AD3d 1576, 1577). We therefore modify the

judgment accordingly. 

Contrary to defendant’s contention, viewing the evidence in light

of the elements of the remaining crimes as charged to the jury (see

People v Danielson, 9 NY3d 342, 349), we conclude that the verdict is

not against the weight of the evidence (see generally People v

Bleakley, 69 NY2d 490, 495). Defendant was identified by only two

prosecution witnesses; one is a drug addict who also was indicted for

these crimes and who received a favorable plea agreement in exchange

for her testimony, and the other has a lengthy criminal record. Thus,

we agree with defendant that another result would not have been
-2- 307 

KA 09-00069 

unreasonable (see id. at 495). Nevertheless, we further conclude

that, upon weighing the “ ‘relative strength of conflicting inferences

that may be drawn from the testimony,’ ” the jury did not fail to give

the evidence the weight it should be accorded (id.). 

Because he failed to object in a timely manner to the

prosecutor’s failure to correct the testimony of a prosecution witness

that she did not receive any benefit for her testimony, defendant

failed to preserve for our review his contention that the People’s

failure to correct that testimony deprived him of a fair trial (see

People v Hendricks, 2 AD3d 1450, 1451, lv denied 2 NY3d 762). In any

event, we conclude that, although the prosecutor has an obligation “to

correct misstatements by a witness concerning the nature of a promise”

(People v Novoa, 70 NY2d 490, 496), the error in failing to do so here

is harmless because County Court instructed the jury that the witness

also had been indicted for these crimes and had been permitted to

plead guilty to lesser offenses in exchange for her testimony (see

generally Hendricks, 2 AD3d at 1451). 

We also reject defendant’s contention that the court erred in

permitting the People to present the testimony of a police witness

regarding the out-of-court identification of defendant by a

prosecution witness (see CPL 60.25). During her testimony, the

witness mistakenly identified the codefendant as defendant, and

explained that defendant had long hair with braids at the time of the

crime. It is undisputed that defendant’s hair was short at the time

of the trial. Thus, based upon defendant’s change of appearance, the

court properly determined that the witness was unable to identify

defendant on the basis of present recollection (see generally People v

Quevas, 81 NY2d 41, 45-46; People v Nival, 33 NY2d 391, 394-395,

appeal dismissed and cert denied 417 US 903). 

Entered: March 16, 2012 Frances E. Cafarell

Clerk of the Court