SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

318 

KA 09-01937 

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

EKISHA N. ALLIGOOD, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County (David

D. Egan, J.), rendered August 21, 2009. The judgment convicted

defendant, upon a jury verdict, of grand larceny in the third degree

and criminal possession of a forged instrument in the second degree

(six counts). 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting her

upon a jury verdict of grand larceny in the third degree (Penal Law §

155.35 [1]) and six counts of criminal possession of a forged

instrument in the second degree (§ 170.25). The counts charging

criminal possession of a forged instrument involved six pension checks

payable to defendant’s father, a resident in the long-term care unit

of Monroe Community Hospital (MCH). In 2006, defendant endorsed those

checks to her landlord with the forged signature of her father, in

partial payment of her rent. According to defendant, she negotiated

the checks pursuant to the authority granted her by a power of

attorney executed by her father in 2003. However, the People

established that, in 2004, the bank issuing the pension checks

notified MCH that the father’s checks were being diverted to defendant

under a power of attorney allegedly signed by the father in 2003. 

After learning of the diversion of the pension checks, MCH staff

assisted the father in preparing a letter to the issuing bank

directing that the pension checks were to be mailed to him at MCH and

informing the issuing bank that the father had not signed a power of

attorney in 2003 and in fact had revoked a prior power of attorney

executed in 2001. Over defendant’s hearsay objection, Supreme Court

admitted the letter in evidence as a CPLR 4518 (a) “business record.” 

Although a defense witness who owned a liquor store testified that

defendant’s father had walked into his store in 2003 and signed a
-2- 318 

KA 09-01937 

document that the store owner notarized, the People established that

in 2003 the father suffered from a number of debilitating medical

conditions that rendered him unable to ambulate on his own, and he had

not in any event left MCH since at least 2001. 

Even assuming, arguendo, that the court erred in admitting in

evidence the letter prepared by MCH staff and signed by the father, we

conclude that any error is harmless. The People presented

overwhelming evidence establishing that the father had not, and could

not have, walked into the liquor store in Rochester in 2003 and

executed a power of attorney naming defendant as his power of

attorney, and there is no significant probability that the jury would

have acquitted defendant if the letter had not been admitted in

evidence (see People v Crimmins, 36 NY2d 230, 241-242; People v

Glover, 4 AD3d 852, 852, lv denied 2 NY3d 740). We agree with

defendant that the court erred in allowing the People to present

expert testimony on the law pertaining to the execution and revocation

of a power of attorney and the duties of the agent thereunder (see

People v Johnson, 76 AD2d 983, 984; see generally Colon v

Rent-A-Center, 276 AD2d 58, 61-62). However, inasmuch as the evidence

overwhelmingly established that the father did not execute the power

of attorney proffered by defendant and there is no significant

probability that the “jury’s verdict . . . would have been different”

without the expert testimony, the error is harmless (People v Clyde,

18 NY3d 145, 154). Defendant failed to preserve for our review the

majority of the instances of alleged prosecutorial misconduct that she

now contends deprived her of a fair trial, and we note that objections

otherwise made by defense counsel were largely sustained by the court,

with no request by defendant for further relief, including a mistrial

(see People v Williams, 8 NY3d 854, 855). In any event, “[r]eversal

on grounds of prosecutorial misconduct ‘is mandated only when the

conduct has caused such substantial prejudice to the defendant that

[s]he has been denied due process of law’ ” (People v Rubin, 101 AD2d

71, 77, lv denied 63 NY2d 711), and that cannot be said here (see id.

at 77-78).

Entered: March 28, 2014 Frances E. Cafarell

Clerk of the Court