| People v Wilson |
| 2018 NY Slip Op 05715 [164 AD3d 1012] |
| August 9, 2018 |
| Appellate Division, Third Department |
[*1](August 9, 2018)
| The People of the State of New York,Respondent, v Casey Wilson, Appellant. |
Catherine A. Barber, Guilderland, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Clark, J. Appeals (1) from a judgment of the County Court of Chemung County (Hayden, J.),rendered November 3, 2014, upon a verdict convicting defendant of the crimes of burglary in thefirst degree (two counts), rape in the first degree (two counts), criminal sexual act in the firstdegree (two counts), aggravated sexual abuse in the third degree (two counts) and robbery in thefirst degree, and (2) from a judgment of said court, rendered December 1, 2014, convictingdefendant upon his plea of guilty of the crime of burglary in the second degree.
Defendant was charged in a 10-count indictment with various offenses arising out of a seriesof masked burglaries committed on June 15, 2011, September 29, 2013 and November 26, 2013.Following arraignment, defendant successfully moved to, among other things, sever count 8 ofthe indictment, which charged him with burglary in the second degree and was the sole chargearising out of the November 2013 incident (see CPL 200.20 [3]). The matter thereafterproceeded to a jury trial on the remaining nine counts of the indictment, which arose out of theJune 2011 and September 2013 incidents. Defendant was ultimately convicted of all ninecounts—specifically, two counts of burglary in the first degree, two counts of rape in thefirst degree, two counts of criminal sexual act in the first degree, two counts of aggravated sexualabuse in the third degree and one count of robbery in the first degree. County Court subsequentlysentenced defendant to an aggregate prison term of 25 years, followed by 10 years of postrelease[*2]supervision.[FN*] Immediately following sentencing, defendantpleaded guilty to the severed charge—burglary in the second degree—and he wassentenced to a prison term of 15 years followed by five years of postrelease supervision, to beserved concurrently with the sentences for the other convictions. Defendant now appeals fromboth judgments of conviction.
Initially, we find no merit to defendant's contention that his convictions are not supported bylegally sufficient evidence and are against the weight of the evidence. In reviewing a legalsufficiency claim, "we view the evidence in the light most favorable to the People and evaluatewhether 'there is any valid line of reasoning and permissible inferences which could lead arational person to the conclusion reached by the jury on the basis of the evidence at trial and as amatter of law satisfy the proof and burden requirements for every element of the crimecharged' " (People vRobinson, 156 AD3d 1123, 1124 [2017], lv denied 30 NY3d 1119 [2018],quoting People v Bleakley, 69 NY2d 490, 495 [1987]). In contrast, a weight of theevidence analysis requires us to first determine, based on all of the credible evidence, whether adifferent result would have been unreasonable and, if not, weigh the relative probative force ofconflicting testimony and the relative strength of conflicting inferences that may be drawn fromthe testimony to determine if the verdict is supported by the weight of the evidence (see People v Danielson, 9 NY3d342, 348 [2007]; People v Bleakley, 69 NY2d at 495; People v Perry, 154 AD3d 1168,1169 [2017]).
Turning first to the June 2011 incident, the 2011 victim testified that, on the morning inquestion, she awoke around 5:00 a.m. to a tall man—dressed in dark clothes and wearing abandana over the bottom half of his face—standing in her bedroom doorway with a knife.She stated that, as she began to scream, the individual charged and climbed on top of her,covered her face with a pillow and threatened to kill her if she looked at him. According to the2011 victim, the individual then asked whether she had any money or marihuana in theapartment, to which she replied that she did not. She testified that the individual thereafterinstructed her to roll over onto her stomach and, after putting on what she believed to be acondom and rubbing a sticky substance on her vaginal area, raped her. She stated that when hewas finished, he threatened to come back and kill her if she disclosed the assault. The 2011victim asserted that her assailant's eyes looked "familiar" and that she knew her assailant to bedefendant as soon as she heard his voice, which she described as "high-pitched." She also statedthat her attacker, like defendant, was tall, skinny, not white or black, but of "mixed race," andhad long, skinny fingers. She explained that she knew defendant through her boyfriend, withwhom she lived, that defendant had been a frequent visitor to her home and that she wastherefore familiar with his appearance, voice and manner of speaking. The 2011 victimadditionally stated that defendant had previously smoked marihuana in her apartment and thatshe had seen defendant wear a bandana over his face in a fashion similar to the attacker.
The subsequent police investigation revealed that the attacker had gained entry into the homethrough a kitchen window, but that no fingerprint evidence could be recovered from the window.The boyfriend testified that defendant had been at the apartment the evening before the attackuntil roughly midnight, when defendant left to meet up with a romantic interest. The boyfriendalso testified that he received a call from an unknown number on the morning of the [*3]attack and that he later asked defendant if he had called from theunknown number. According to the boyfriend, defendant responded that he had called, that hehad been "in the wrong place at the wrong time" and that he had been mixed up in a differenthome burglary, allegedly at a different house on the 2011 victim's street. Although a sex offenseevidence kit was obtained from the 2011 victim, analysis of the collected evidence indicated onlythe presence of DNA from the 2011 victim. Defendant, who testified on his own behalf, deniedassaulting the 2011 victim.
In our view, the foregoing evidence, viewed in the light most favorable to the People,provided a valid line of reasoning and permissible inferences from which a rational juror couldconclude that defendant committed burglary in the first degree by knowingly entering the 2011victim's home with the intent to commit a crime therein and threatening her with a knife(see Penal Law § 140.30 [3]; People v Ramos, 129 AD3d 1205, 1206 [2015], lv denied26 NY3d 971 [2015]; People vWoodrow, 91 AD3d 1188, 1189-1190 [2012], lv denied 18 NY3d 999 [2012]),as well as rape in the first degree by using forcible compulsion to engage in sexual intercoursewith the 2011 victim (see Penal Law §§ 130.00 [8]; 130.35).Accordingly, with respect to the June 2011 incident, we find that defendant's convictions on thecharges of burglary in the first degree and rape in the first degree are supported by legallysufficient evidence. As to defendant's weight of the evidence challenge, we find that it would nothave been unreasonable for the jury to have acquitted defendant of the charges arising out of theJune 2011 incident, given defendant's denial of the charges and the absence of fingerprint orDNA evidence. However, viewing the evidence in a neutral light and according deference to thejury's credibility assessments (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]), we find defendant's convictions to be supported by the weight ofthe credible evidence (see People vGlass, 150 AD3d 1408, 1409-1410 [2017], lv denied 30 NY3d 1115 [2018];People v Ramos, 129 AD3d at 1206-1207; People v Woodrow, 91 AD3d at1189-1190).
We reach a similar conclusion with respect to the charges arising out of the September 2013incident. The 2013 victim testified that defendant came to her home around 5:00 a.m. on the dayin question to meet his girlfriend, who had been at her apartment for a few hours. The 2013victim stated that, although she did not see defendant, she heard his voice and was informed bydefendant's girlfriend that it was defendant at the door. The 2013 victim testified that she fellasleep on the couch while defendant and his girlfriend spoke outside and that she was awokenaround 7:00 a.m. by someone pushing her face into the couch. She asserted that this individualthen put a knife to her face with a gloved hand and threatened to stab her if she did not remainquiet. According to the 2013 victim, the masked individual blindfolded her and brought herupstairs to her bedroom in a manner that led her to believe that he was familiar with the layout ofher home. She stated that, once they were upstairs, the individual forced her to perform oral sexon him and vaginally and anally raped her. The 2013 victim testified that, before any sexualcontact, the individual put on a condom that he retrieved at her direction from her dresser drawer.She stated that the individual brought her downstairs after the assault and, after forcing her to layon her stomach, inserted an object—which he claimed was a douche—into hervagina and anus, followed by his fingers. According to the 2013 victim, the individual then stolea small amount of cash and fled. She described her attacker as tall, skinny and dressed in a redsweatshirt, dark jeans, dark sneakers and a ski mask. She stated that, although the individualattempted to disguise his voice, she recognized the voice as that of defendant, who had been aguest at her home roughly twice a week in the months leading up to the attack. She stated that shereported the attack to law enforcement, identified defendant as her assailant and submitted to asexual offense evidence kit at the hospital.
[*4] Duringthe ensuing investigation, police recovered various physical evidence from the scene, including aLifestyle condom wrapper. The testimony established that, prompted by the 2013 victim'sidentification of defendant as her assailant, police spoke with defendant shortly after 8:00 a.m. onthe morning of the attack, that he voluntarily accompanied them to the police station forquestioning and that a pat down of defendant's person for officer safety revealed that defendanthad an unopened Lifestyle condom and $40 in cash. The evidence also established that defendantconsented to a buccal swab and a search of his room. While a red hooded sweatshirt was notrecovered during that search, defendant's aunt—with whom he lived—testified thatshe was missing a red sweatshirt. Additionally, the officer who interviewed defendant testifiedthat defendant acknowledged meeting his girlfriend at the victim's apartment earlier thatmorning, but claimed that he had been returning a key to a friend when the crimes occurred. Thatfriend, however, testified that defendant never had a key to his apartment and that he did not seedefendant on the morning in question. The friend also testified that, when he confronteddefendant on this issue, defendant stated that he had lied because he did not want his girlfriend toknow that he had been with another woman.
The evidence also demonstrated that the police secured relevant surveillance footage fromoutside the 2013 victim's apartment, as well as a bar parking lot adjacent to defendant's home.The footage from the apartment complex, which was admitted into evidence and played for thejury, depicted an individual arriving at the 2013 victim's apartment at 4:52 a.m., speaking withanother individual for awhile and eventually the two leaving together at 6:15 a.m. The footagealso depicted an individual—wearing a red hooded sweatshirt, jeans and black and whitesneakers—enter the 2013 victim's apartment at 7:15 a.m. and leave the premises at 7:46a.m. in the same clothes, but wearing lavender gloves and a face mask and carrying an unknownobject. The footage from the bar parking lot showed an individual riding a bicycle past theestablishment at 8:00 a.m. wearing a red hooded sweatshirt. Defendant's aunt and uncle bothtestified that they recognized defendant as the person riding the bicycle in this footage, and theuncle testified that the bicycle had been a gift intended for his stepdaughter.
With respect to the forensic evidence, a State Police forensic scientist testified that thevulvar, vaginal and cervical swabs taken from the 2013 victim tested positive for sperm and thatthe recovered DNA profiles were found to be consistent with a mixture of DNA from the 2013victim and her boyfriend. Defendant was excluded as a contributor from all three of thesesamples. Additionally, the DNA profiles recovered from swabs of the outside of the condomwrapper were consistent with three individuals, one of whom was male. However, due to thecomplexity of the genetic information, no one could be included or excluded as acontributor.
Further, as established by the evidence, lavender gloves were discovered not far from the2013 victim's apartment and swabs taken from both the outside and inside of the gloves weresubjected to forensic testing conducted by the State Police Forensic Investigation Center. Thattesting excluded defendant as a contributor to the DNA profiles recovered from the outside of thegloves. The DNA profile recovered from the inside of one of the gloves was consistent with the2013 victim's DNA, admixed with at least two additional donors, but did not have "enoughadditional DNA" to reach any conclusions as to the minor contributors. The DNA profilerecovered from the inside of the other glove was consistent with at least three donors, one ofwhom was male, but was too complex to include or exclude anyone. The State Police forensicscientist testified that, given his inability to reach any conclusions with respect to the DNAprofiles recovered from inside the gloves under State Police methods used at that time, herecommended to the prosecutor that those DNA profiles be sent to a privatecompany—Cybergenetics—to be analyzed using the TrueAllele Casework system, aproprietary computer program that interprets complex DNA evidence to "determine matchstatistics" between [*5]recovered DNA profiles and knownindividuals. Mark Perlin, the chief scientific officer and chief executive officer of Cybergenetics,testified that the TrueAllele Casework system was able to analyze DNA ordinarily disregarded byhuman analysts to determine whether there was a match between the DNA evidence recoveredfrom the inside of the gloves and defendant. Specifically, Perlin testified that a match betweendefendant and the DNA profile recovered from the inside of one of the gloves was 31.3 milliontimes more probable than a coincidental match to an unrelated black person. As to the DNAprofile recovered from the inside of the other glove, Perlin stated that it was 817,000 times moreprobable than a coincidence that it was a match to defendant.
While testifying on his own behalf, defendant denied having attacked the 2013 victim. Heacknowledged that he was the individual in the bar surveillance footage riding a bicycle past thebar at 8:00 a.m., but asserted that he was not the individual depicted in the apartment complexfootage at 7:15 a.m. and 7:46 a.m. He stated that, at that time, he had ridden his bicycle to anearby park to take bath salts. Defendant further testified that he had "similar" lavender gloves tothe ones found outside the apartment complex and that he may have left them at the 2013victim's home that morning.
Viewing the foregoing trial evidence in the light most favorable to the People, we concludethat there is a valid line of reasoning and permissible inferences that could lead a rational juror toconclude that, with respect to the September 2013 incident, defendant committed burglary in thefirst degree (see Penal Law § 140.30 [3]; People v Ramos, 129AD3d at 1206), rape in the first degree (see Penal Law § 130.35 [1]), twocounts of criminal sexual act in the first degree (see Penal Law § 130.50[1]), two counts of aggravated sexual abuse in the third degree (see Penal Law§ 130.66 [1] [a]) and robbery in the first degree (see Penal Law§ 160.15 [3]). As such, we find that these convictions are supported by legallysufficient evidence. Moreover, we are satisfied that each of defendant's convictions arising out ofthe September 2013 incident are supported by the weight of the credible evidence (see Peoplev Glass, 150 AD3d at 1409-1410; People v Ramos, 129 AD3d at 1206; People v Lancaster, 121 AD3d1301, 1303-1304 [2014], lv denied 24 NY3d 1121 [2015]).
However, we agree with defendant that defense counsel's failure to request a Fryehearing on the TrueAllele Casework system constituted ineffective assistance of counsel. Inassessing a claim of ineffective assistance of counsel, we consider whether "the evidence, thelaw, and the circumstances of a particular case, viewed in totality and as of the time of therepresentation, reveal that the attorney provided meaningful representation" (People vBaldi, 54 NY2d 137, 147 [1981]; see People v Honghirun, 29 NY3d 284, 289 [2017]). Generally, thefailure to make a certain pretrial motion will not, without more, constitute ineffective assistanceof counsel (see People v Rivera, 71 NY2d 705, 709 [1988]; People v Vonneida, 130 AD3d1322, 1323 [2015], lv denied 26 NY3d 1093 [2015]; People v Carnevale, 101 AD3d1375, 1378 [2012]). However, "[i]n the rare case," counsel will be deemed ineffective forfailing, in the absence of strategic or other legitimate explanations, to pursue a colorable claim(People v Rivera, 71 NY2d at 709; see People v Carver, 27 NY3d 418, 420 [2016]; People vGarcia, 75 NY2d 973, 974 [1990]).
Defendant asserts that his trial counsel should have challenged, by way of a Fryehearing, the reliability of the TrueAllele Casework system, the proprietary "computer programthat use[d] mathematics and statistics to interpret" the electronic data generated from the DNAmixtures taken from the lavender gloves and determine the statistical probability of a matchbetween defendant's DNA and that found on the inside of the gloves. A Frye hearingascertains [*6]the reliability of "novel scientific evidence" bydetermining "whether the accepted techniques, when properly performed, generate resultsaccepted as reliable within the scientific community generally" (People v Wesley, 83NY2d 417, 422 [1994]; see Frye v United States, 293 F 1013, 1014 [1923]; Parker v Mobil Oil Corp., 7 NY3d434, 446 [2006]). At the time of defendant's pretrial proceedings in 2014, there were noreported trial court or appellate court decisions in this state establishing that the reliability of theTrueAllele Casework system had been assessed through a Frye hearing or that any courtin the state had otherwise accepted expert testimony regarding that proprietary computer program(see People v Wakefield, 47 Misc3d 850, 851 [Sup Ct, Schenectady County 2015]; compare People v Middleton, 54NY2d 42, 49-50 [1981]; People v Magri, 3 NY2d 562, 566 [1958]). Given thesecircumstances, we do not find that it would have been futile for defense counsel to haverequested a Frye hearing to challenge the reliability of the TrueAllele Casework system orthat such an application would have had little or no likelihood of success (see generallyPeople v Carnevale, 101 AD3d at 1381). While we cannot determine whether the results ofthe testing performed by the TrueAllele Casework system would have been found to be reliablewithin the scientific community in 2014 had a Frye hearing been timely requested andheld, defense counsel did have a colorable basis upon which to request a Frye hearing (see generally People v Zeh, 144 AD3d1395, 1397-1398 [2016], lv denied 29 NY3d 954 [2017]; People vCarnevale, 101 AD3d at 1378; People v Vega, 276 AD2d 414, 414 [2000]).
Moreover, we can discern no reasonable trial strategy or legitimate explanation for defensecounsel's failure to request a Frye hearing. It is evident from the record that Perlintestified before the grand jury regarding the TrueAllele Casework system and that, at some pointduring pretrial proceedings, the People informed defendant of their intention to present Perlin'sexpert testimony at trial. Perlin's expert testimony provided the only definitive DNA evidenceconnecting defendant to the crimes perpetrated against the 2013 victim. Thus, defense counselhad every reason to challenge the reliability of the TrueAllele Casework system. Indeed, had theTrueAllele Casework system been found to be unreliable after a Frye hearing, Perlin'stestimony would have been rendered inadmissible, which, in turn, would have weakened thePeople's case against defendant. In light of the fact that defense counsel "had everything to gainand nothing to lose" by challenging the admissibility of Perlin's expert testimony (People v Velez, 138 AD3d 1041,1042 [2016], lv denied 28 NY3d 938 [2016]; accord People v Zeh, 144 AD3d at1397-1398), "we can perceive of no strategic reason or legitimate tactical explanation forcounsel's wholesale surrender to the admission" of Perlin's expert testimony regardingTrueAllele-derived DNA evidence (People v Carnevale, 101 AD3d at 1381).Accordingly, in the absence of strategic or other legitimate explanations for defense counsel'sfailure to pursue a colorable request for a Frye hearing, we find that the circumstances ofthis case present us with one of those rare instances in which defense counsel's solefailure—in an otherwise proficient representation—constituted ineffectiveassistance of counsel (see People v Zeh, 144 AD3d at 1397-1398; People vCarnevale, 101 AD3d at 1382). In light of our determination, we hold the appeal from theNovember 2014 judgment in abeyance and remit the matter to County Court for a posttrialFrye hearing to consider the reliability of the TrueAllele Casework system as it was whenthe analysis was performed in 2013 and report back on its findings (see generally People vRoraback, 242 AD2d 400, 406 [1997], lv denied 91 NY2d 879 [1997]). PendingCounty Court's determination upon remittal, we withhold decision on the remaining issues raisedby defendant in connection with his appeal from the November 2014 judgment ofconviction.
As to the December 2014 judgment of conviction entered upon defendant's guilty plea, weagree with defendant that he did not knowingly, voluntarily and intelligently enter into his pleabecause County Court failed to advise him that he would be subject to a period of postreleasesupervision before accepting his plea or at any other time prior to imposing his [*7]sentence (see People v Louree, 8 NY3d 541, 545-546 [2007]; People v Watkins, 140 AD3d1206, 1206-1207 [2016]; seegenerally People v Peque, 22 NY3d 168, 182-183 [2013], cert denied 574 US&mdash, 135 S Ct 90 [2014]; comparePeople v Crowder, 24 NY3d 1134, 1136-1137 [2015]; People v Murray, 15 NY3d 725,726-727 [2010]). Accordingly, we reverse the December 2014 judgment of conviction and remitfor further proceedings in accordance with this decision.
McCarthy, J.P., Lynch, Devine and Rumsey, JJ., concur. Ordered that, on the appeal from thejudgment rendered November 3, 2014, the decision is withheld, and matter remitted to theCounty Court of Chemung County for further proceedings not inconsistent with this Court'sdecision. Ordered that the judgment rendered December 1, 2014 is reversed, on the law, andmatter remitted to the County Court of Chemung County for further proceedings not inconsistentwith this Court's decision.
Footnote *:County Court initially imposed10 years of postrelease supervision on the burglary and robbery convictions, but subsequentlycorrected that illegal sentence and imposed the required five-year period of postreleasesupervision (see Penal Law § 70.45 [2]).