| People v Kelley |
| 2011 NY Slip Op 01688 [82 AD3d 463] |
| March 8, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Richard Kelley, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered July 7, 2008,convicting defendant, after a jury trial, of course of sexual conduct against a child in the firstdegree, endangering the welfare of a child, and 20 counts of criminal contempt in the seconddegree, and sentencing him to an aggregate term of 25 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is nobasis for disturbing the jury's credibility determinations. The jury convicted defendant of a courseof sexual conduct against his daughter, committed when she was 11 and 12 years old, butacquitted him of rape and incest charges pertaining to three later incidents. Although, inperforming weight of evidence review, we may consider these acquittals (see People vRayam, 94 NY2d 557, 563 n [2000]), we find that the mixed verdict does not warrant adifferent conclusion. Aside from the possibility that it chose to extend leniency, the jury couldhave reasonably found that the evidence of the three specific incidents was not as strong as theevidence of the prior course of conduct.
The court properly denied defendant's request for preclusion of DNA evidence introducedlate in the trial, or alternatively for a mistrial. The victim testified that defendant customarilyejaculated on a towel during the sexual acts at issue. The victim's mother gave a particular towelto the police. Defense counsel, who had been told by the prosecutor that there was noincriminating DNA evidence in the case, interviewed the DNA technician assigned to the case incontemplation of calling her as a defense witness. In the interview, the technician revealed thatalthough other items had been tested, the towel had not. Defense counsel then inquired of theprosecutor as to why the towel had not been tested. This led to testing of the towel, whichshowed that it contained defendant's DNA and that of a female other than the victim.
The court properly exercised its discretion in permitting the People to introduce the results ofDNA testing of the towel on their rebuttal case. There was no discovery violation, because theapplicable statute (CPL 240.20 [1] [c]) governs the timing of the disclosure of test resultsdemanded by the defense, not the timing of the tests. Until the towel was tested, no report [*2]of DNA evidence existed, and the People were not required to turnover a report that did not exist.
In any event, there was no bad faith by the People, who were unaware of the laboratory'sfailure to test the towel, and no prejudice to defendant (see People v Jenkins, 98 NY2d280, 284 [2002]; People v Kelly, 62 NY2d 516, 520 [1984]). Defendant argues that hestructured his defense in reliance on the prosecutor's misrepresentation that there was noincriminating DNA evidence. However, we do not find that any significant component of thedefense resulted from any such reliance, or that the belated revelations about the towel causedany irreparable damage. On the contrary, counsel affirmatively used the DNA evidence to arguethat defendant had not committed the charged crimes, since the female DNA on the towel did notmatch the victim's, as would have been expected according to her testimony.
Although defense counsel's phone call alerted the prosecutor to the fact that no testing hadoccurred, this did not deprive defendant of the effective assistance of counsel (see People vBenevento, 91 NY2d 708, 713-714 [1998]; see also Strickland v Washington, 466US 668 [1984]). Counsel's action met an "objective standard of reasonableness"(Strickland at 688). It was appropriate for counsel to be concerned as to why the towelhad not been tested, given that the absence of DNA evidence on the towel would have beenhelpful to the defense, and to follow up with an inquiry. In any event, defendant has not shown areasonable probability that counsel's alleged error affected the outcome of the trial or underminedconfidence in the result (id. at 694). As noted, the DNA evidence on the towel cut bothways. On the one hand, it provided some relatively minor corroboration of the victim's testimonyregarding a detail of the sexual offenses. On the other hand, the presence of defendant's DNA ona towel in his own home was not particularly incriminating, and, as defense counsel argued, thepresence of DNA from an unidentified female rather than from the victim tended to beexculpatory.
The court properly permitted the People to impeach defendant's testimony with statementsmade by his counsel in his presence at arraignment (see People v Brown, 98 NY2d 226[2002]; People v Gary, 44 AD3d416 [2007], lv denied 9 NY3d 1006 [2007]). The statements reasonably appeared tobe attributable to defendant, even if the attorney was also speaking from her personal knowledgeregarding some matters.
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Sweeny,Renwick, Freedman and Manzanet-Daniels, JJ.