| People v Kaminski |
| 2009 NY Slip Op 02686 [61 AD3d 1113] |
| April 9, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ThomasKaminski, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Kevin M. O'Shea of counsel), forrespondent.
Kavanagh, J. (1) Appeal from an order of the County Court of Chemung County (Buckley,J.), entered May 8, 2007, which, among other things, denied defendant's motion pursuant to CPL440.30 (1-a) for the performance of forensic DNA testing on specified evidence, and (2) motionto expand the record on appeal.
Late on the evening of October 20, 1979, the victim was alone and asleep in her home withher 15-month-old child when she was suddenly awakened by a man wearing a ski mask andgloves, who placed his hand over her mouth, told her to be quiet and demanded money. As thevictim attempted to get out of bed, the intruder continued to hold her down and stated that hewould not hurt her if she did what she was told. The intruder than told the victim that he had to"have" her, turned on the light in the bedroom, removed his mask, pants and gloves, and sexuallyassaulted her. As the intruder was leaving the residence, the victim recognized him as someoneshe had previously seen with friends while they were searching for a horse that had escaped fromthe victim's property. After the intruder left, the victim immediately contacted a neighbor, toldhim that she had been raped and together they reported the incident to the State Police. Based oninformation received from the victim, the State Police were able to identify defendant and, afterplacing him under arrest, charged him with rape in the first degree, sodomy in the first degree(two counts) and burglary in the second degree.[*2]
At trial, defense counsel admitted that his client was theman wearing the mask who forced his way into the victim's residence, but claimed that thePeople had failed to prove beyond a reasonable doubt that the victim had been forciblycompelled to participate in any sexual encounter. The jury, by its verdict, rejected this defenseand convicted defendant of all of the charges contained in the indictment. Prison sentences of8
More than 25 years after his trial, defendant moved to vacate the judgment of conviction(see CPL 440.10) and requested that an order be entered directing that DNA testing beperformed on sheets removed from the victim's bed after the incident (see CPL 440.30[1-a]).[FN2]County Court denied both applications, prompting this appeal.
Initially, the People move for an order to enlarge the record on appeal so that it includesportions of the trial transcript that were considered by County Court when it decided defendant'smotion. As there is no question as to the relevance or the accuracy of these segments of the trialrecord, or that they were considered by the court when it decided this motion, they must be partof the record for there to be an intelligent review of the issues raised by defendant on thisappeal.[FN3]Therefore, the People's motion to expand the record is granted.
Turning to the merits of the appeal, an application that certain items of evidence be subjectto DNA testing should be granted if it can be shown that a " 'reasonable probability' " exists thatsuch tests, if performed and the results of which admitted at trial, would have resulted in averdict " 'more favorable to the defendant' " (People v Pitts, 4 NY3d 303, 310 [2005], quoting CPL 440.30 [1-a];see People v Hurdle, 56 AD3d317, 317 [2008]; People vKing, 38 AD3d 1066, 1067 [2007], lvs denied 9 NY3d 877, 880 [2007]; People v Brown, 36 AD3d 961,961-962 [2007], lvs denied 8 NY3d 919, 920 [2007]; compare People v West, 41 AD3d 884, 884-885[*3][2007]).[FN4]Here, the victim testified that she was forced to perform oral sex on her attacker and that after heejaculated, she gagged and disgorged the ejaculate onto defendant. Defendant argues that if hisDNA is not found on the bed sheets, that would suggest that force was not used, and theencounter, contrary to the victim's claim, was consensual. Initially, we note that this issue and, inparticular, the significance to be accorded to the fact that defendant's DNA was not on the bedsheets, was fully developed at trial. In that regard, defense counsel vigorously argued that thePeople failed to prove that defendant's DNA was on the bed sheets and, since the victim was notinjured in the encounter, it was only "reasonable to assume" that it was completely consensual.Under the circumstances, DNA testing would have, at best, constituted collateral evidence thatsimply served to confirm what had already been established as a fact at trial and, if introduced,would have added little in terms of the evidence that was before the jury at the time it conductedits deliberations and arrived at its verdict.
Defendant also argues that if these tests established that it was not his DNA on the bedsheets, then someone else must have perpetrated this attack. However, the fact that defendantforced his way into the victim's residence while wearing a mask and gloves on the night inquestion was never a substantive issue to be resolved by the jury in its deliberations. This isespecially true given defense counsel's statement in summation that "we admit that defendant didat first go into that house, into [the victim's] house, and that [defendant] at the time was wearinga mask and gloves, and he went up—went upstairs, and into [the victim's] bedroom, andthat for a period of time he did have his hands placed over her mouth." This concession wasobviously made because other evidence introduced at trial conclusively established thatdefendant was in the victim's house on the night of the attack. Specifically, after the attack, thevictim told the State Police that she recognized her assailant as an individual who had recentlyvisited her house with friends who were boarding a horse on her property. The friends identifieddefendant, provided the police with contact information and arrangements were made for thevictim to place a tape-recorded telephone call to defendant's residence within hours after theattack. A tape recording of the ensuing conversation was properly admitted into evidence at trialand conclusively established that defendant not only forced his way into the victim's residencewhile wearing a mask and gloves, but also that their encounter was anything butconsensual.[FN5]This evidence was corroborated by the victim's in-court identification of defendant and therecovery of clothing in his possession, including the mask and gloves that were used in theattack. Based on the foregoing, County Court's decision that DNA testing, if performed, wouldnot have altered the outcome of this trial and its decision denying defendant's motion without ahearing should be affirmed (see Peoplev Simpson, 35 AD3d 901, 902 [2006], lv denied 8 NY3d 927 [2007]).[*4]
Cardona, P.J., Rose, Kane and Stein, JJ., concur. Orderedthat the motion is granted.
Ordered that the order is affirmed.
Footnote 1: While it agreed with this Court'sdecision to affirm defendant's convictions for rape and burglary (87 AD2d 724 [1982]), the Courtof Appeals reversed his convictions for sodomy and remitted those charges for a new trial (58NY2d 886 [1983]). Those charges were eventually dismissed.
Footnote 2: In his CPL 440.10 motion,defendant also claimed that jury tampering occurred during the trial, the District Attorney andthe trial judge engaged in misconduct and the evidence placing him at the scene of the crime wasnot credible. Given that each of these claims could have been, but were not, raised on defendant'sdirect appeal from the judgment of conviction, County Court properly denied any applicationmade by defendant based upon them (see CPL 440.10 [2] [c]; People v Tucker, 40 AD3d 1213,1217 [2007], lv denied 9 NY3d 882 [2007]).
Footnote 3: Defendant's counsel indicatesthat County Court conducted a "sua sponte" review of the trial record in response to defendant'spro se motion and that these portions of the trial record had not been submitted to County Courtby either party for its consideration in deciding the motion.
Footnote 4: The bed sheets were neverintroduced into evidence at trial and were returned to the victim in 1981.
Footnote 5: During the tape recording,defendant asked the victim, "How did you know who I was?" and the victim explained how sheknew him and got his number. She asked defendant, "Why did you make me do it with you?"and defendant answered, "I don't know." She asked him, "Why did you wear gloves though?"and he answered "Well, I don't know." She asked, "Would you hurt me?" and he answered, "No.I did though, didn't I?" She again asked him why he wore gloves and a mask and he said, "Ididn't want you to know who I was."