| People v Sprosta |
| 2008 NY Slip Op 02622 [49 AD3d 784] |
| March 18, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v SeanSprosta, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.),rendered March 16, 2005, convicting him of rape in the first degree, robbery in the first degree,and burglary in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
At trial, the People offered into evidence the case files from the Office of the Chief MedicalExaminer of New York City (hereinafter OCME) which contained the results of DNA testing ofsamples taken from the victim and the defendant. The files contained reports from anindependent laboratory which, under contract with OCME, had performed the tests on thesamples taken from the victim. An analyst employed by OCME developed the male and femaleDNA profiles from the raw data provided by the independent laboratory and entered the maleprofile into a national database, resulting in a match with the defendant's DNA on file in thedatabase. Additionally, the same OCME analyst conducted the testing on a blood sample takenfrom the defendant after his arrest.
The People offered the OCME files and a chart containing a summary of the analysis in thosefiles through the testimony of an expert in forensic biology employed by OCME, who had notpersonally performed the DNA testing or analysis but had supervised the OCME analyst. ThePeople did not call any witnesses from the independent laboratory which had provided the rawdata from tests on the victim's samples. Defense counsel expressly stated on the record that hehad no [*2]objection to this evidence. Further, defense counselcross-examined the OCME expert regarding the fact that she had not personally performed any ofthe tests and subsequently argued in summation that the jury should reject the expert's opinionbecause it was based upon tests performed by a different agency.
For the first time on appeal, the defendant contends that the DNA evidence was inadmissiblehearsay not within the exception for business records (see CPLR 4518 [a]) and that hisconstitutional right to confront witnesses against him was denied when the prosecution failed tocall a witness from the independent laboratory and the OCME analyst who had performed theDNA profiling (see People vBaylor, 25 AD3d 562 [2006]; cf. Crawford v Washington, 541 US 36 [2004]; People v Rawlins, 10 NY3d 136[2008]). In light of the defendant's failure to register any objection to this evidence, hiscontentions are unpreserved for appellate review (see CPL 470.05 [2]; People v Baylor, 25 AD3d 562[2006]; People v Antongiorgi, 242 AD2d 578 [1997]). Moreover, the record establishesthat defense counsel's express denial of any objection was part of an intentional defense strategyto comment upon the alleged unreliability of the expert's testimony. Under the circumstances,review of the defendant's unpreserved claims in the interest of justice is inappropriate (see People v Bones, 17 AD3d 689,690 [2005]; People v Rodriguez, 4AD3d 300, 301 [2004]; cf. People v Tarsia, 50 NY2d 1, 9 [1980]).
The defendant's contention that he was denied the effective assistance of trial counsel iswithout merit. To prevail on a claim of ineffective assistance of counsel, the defendant mustdemonstrate that his attorney failed to provide meaningful representation and the absence ofstrategic or other legitimate explanations for his counsel's allegedly deficient conduct (see People v Caban, 5 NY3d 143,152 [2005]; People v Montana, 71 NY2d 705, 708 [1988]). The record before us revealsstrategic or legitimate explanations for the alleged instances of ineffective assistance.
The defendant's contention that he was unduly prejudiced by testimony that his DNA profilewas in a database containing forensic samples "from different crimes throughout the country" isunpreserved for appellate review and, in any event, is without merit.
The defendant's remaining contention is without merit. Fisher, J.P., Dillon, McCarthy andBelen, JJ., concur.