| People v Pearson |
| 2011 NY Slip Op 01699 [82 AD3d 475] |
| March 8, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Reginald Pearson, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Christopher P. Marinelli of counsel), forrespondent.
Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered May 28, 2008,as amended June 27, 2008, convicting defendant, after a jury trial, of predatory sexual assault(eight counts), rape in the first degree (four counts), criminal sexual act in the first degree (twocounts), kidnapping in the second degree and criminal possession of stolen property in the fifthdegree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 175years to life, unanimously affirmed. Appeal from order, same court (Lewis Bart Stone, J.),entered on or about December 17, 2009, which denied defendant's CPL 440.10 motion to vacatethe convictions and his request that the court order disclosure of DNA data for analysis by adefense expert, unanimously dismissed.
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations. The stolen keys and jewelry recovered from defendant, aswell as his statements pertaining thereto, were not the product of a warrantless entry into hisapartment. The location of defendant's arrest is dispositive of his claim under Payton v NewYork (445 US 573 [1980]). The evidence supports the hearing court's finding that a detective(possessing undisputed probable cause to arrest) intercepted defendant at the threshold of hisapartment and stopped him from entering, after which the detective arrested and searcheddefendant in the hallway. Accordingly, defendant is not entitled to suppression of any evidence(see People v Reynoso, 309 AD2d 769, 770 [2003], affd 2 NY3d 820 [2004];see also United States v Santana, 427 US 38, 42 [1976]). In any event, any error inreceipt of this evidence was harmless (see People v Crimmins, 36 NY2d 230 [1975]) inlight of the overwhelming evidence of guilt, which included virtually conclusive DNA evidenceas well as the victim's identification testimony.
To the extent that, in testifying about the chain of custody for the stolen property, a detectiveimplicitly related declarations made by another detective, who also testified, we find any error tobe harmless. Defendant did not preserve his hearsay and Confrontation Clause argumentsregarding other police testimony, and we decline to review them in the interest of [*2]justice. As an alternative holding, we also reject them on the merits.In each instance, the evidence was neither testimonial within the meaning of Crawford vWashington (541 US 36 [2004]) nor was it offered for its truth. In any event, we similarlyfind that any error was harmless.
The court properly exercised its discretion in denying defendant's request for an adjournmentof sentencing to obtain a mental health evaluation. The court was in a position to determine thatsuch an examination in aid of sentencing was unnecessary (see People v Dockery, 174AD2d 432 [1991], lv denied 78 NY2d 1010 [1991]). To the extent that defendant israising a constitutional claim regarding the denial of the adjournment, that claim is unpreservedand we decline to review it in the interest of justice. As an alternative holding, we reject it on themerits.
We perceive no basis for reducing the sentence.
This Court previously denied defendant's motion for leave to appeal from that portion of theDecember 2009 order that denied defendant's motion to vacate the judgment (2010 NY Slip Op64711[U] [2010]). The balance of the order is appealable only if it denied a motion for DNAtesting under CPL 440.30 (1-a) (see CPL 450.10 [5]). However, defendant's purportedCPL 440.30 (1-a) motion was actually a request for postconviction discovery of electronic DNAdata, and not a motion for "the performance of a forensic DNA test on specified evidence" (CPL440.30 [1-a]). Accordingly, there is no statutory basis for defendant's appeal (see e.g. People v Bautista, 7 NY3d838, 838-839 [2006]). In any event, we note that defendant obtained the services of a DNAexpert before trial and had a full opportunity to challenge the People's DNA results.Concur—Tom, J.P., Sweeny, Renwick, Freedman and Manzanet-Daniels, JJ.