| People v Henry |
| 2011 NY Slip Op 00238 [80 AD3d 625] |
| January 11, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DamienHenry, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffee ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.),rendered March 31, 2008, convicting him of criminal possession of a weapon in the second degree andmenacing in the second degree (three counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as somodified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, forresentencing in accordance herewith.
In support of their case, the People introduced the results of what was referred to as a Low CopyNumber (hereinafter LCN) DNA test, which purported to show that the defendant's DNA was foundon or near the trigger of a recovered weapon. The defendant argues that he was deprived of theeffective assistance of counsel due to his attorney's failure to request a Frye hearing (seeFrye v United States, 293 F 1013 [1923]; People v Wesley, 83 NY2d 417, 423 [1994])with respect to the admissibility of the results of the LCN DNA testing. The defendant's contention thatLCN DNA testing is not generally accepted in the scientific community is premised upon matter outsideof the record, including discussions he had with his attorney, and arises primarily in the context ofwhether his attorney should have requested the Frye hearing. Accordingly, the issue of whetherLCN DNA testing is not generally accepted in the scientific community cannot, to that extent, bereviewed on direct appeal (see People vAlexander, 72 AD3d 559 [2010]; People v Park, 60 AD3d 972 [2009]). To the extent that the defendant'scontention of ineffective assistance of counsel can be reviewed, the record reveals that the defendantwas not deprived of the effective assistance of counsel under applicable state and federal standards (see People v Mingo, 66 AD3d 1043[2009]).
The sentence imposed upon the defendant's conviction of criminal possession of a weapon in thesecond degree was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
As the defendant notes, however, the Supreme Court failed to pronounce sentence on each of thethree counts of menacing in the second degree (Penal Law § 120.14 [1]) of which he wasconvicted. Therefore, the entire sentence must be vacated, and the matter must be remitted to theSupreme Court, Kings County, for resentencing on all of the convictions in accordance with CPL380.20 (see People v [*2]Sturgis, 69 NY2d 816 [1987]; People v Robinson, 69 AD3d 885[2010]). Dillon, J.P., Angiolillo, Belen and Roman, JJ., concur.