| People v Davis |
| 2011 NY Slip Op 06731 [87 AD3d 1332] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Robert Davis, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered May 21, 2007. The judgment convicted defendant, upon a jury verdict, of rape in thefirst degree (two counts), kidnapping in the second degree, criminal sexual act in the first degree,sexual abuse in the first degree and robbery in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of,inter alia, two counts of rape in the first degree (Penal Law § 130.35 [1]). The indictmentcharged defendant with crimes arising from an incident in August 2005 involving one victim anda second incident in April 2006 involving a different victim. At defendant's request, SupremeCourt severed the counts relating to the August 2005 incident from those relating to the April2006 incident and granted separate trials. Defendant contends that dismissal of the indictment,rather than severance, was the appropriate remedy for the "misjoinder" of the unrelated chargesrelating to each incident. We reject that contention. We conclude that this case does not involve"misjoinder," i.e., the improper joinder of unrelated charges in a single indictment (seegenerally People v Craig, 192 AD2d 323 [1993], lv denied 81 NY2d 1012 [1993];People v Gadsden, 139 AD2d 925, 925-926 [1988]). Pursuant to CPL 200.20 (1), "[a]nindictment must charge at least one crime and may, in addition, charge in separate counts one ormore other offenses . . . provided that all such offenses are joinable pursuant to[CPL 200.20 (2)]." Here, charges pertaining to the August 2005 incident were properly joinedwith those pertaining to the April 2006 incident because the "offenses are defined by the same orsimilar statutory provisions and consequently are the same or similar in law" (CPL 200.20 [2][c]), despite the fact that they involve different victims (see People v Clark, 24 AD3d 1225 [2005], lv denied 6NY3d 832 [2006]; People v Nickel,14 AD3d 869, 870 [2005], lv denied 4 NY3d 834 [2005]; see also People v Burton, 83 AD3d1562 [2011]).
Although defendant contends that dismissal of the indictment is warranted because he waspotentially prejudiced by the submission to the grand jury of charges concerning two unrelatedincidents, we note that such potential for prejudice is always present when charges are joinedpursuant to CPL 200.20 (2) (c) (see Preiser, Practice Commentaries, McKinney's ConsLaws of NY, Book 11A, Penal Law § 200.20). Thus, CPL 200.20 (3) vests the court withthe [*2]authority to order a severance based on potentialprejudice, i.e., where "there is a substantial likelihood that the jury would be unable to considerseparately the proof as it relates to each offense" (CPL 200.20 [3] [a]; see People v Pierce, 14 NY3d 564,573 [2010]). Here, the court granted severance pursuant to CPL 200.20 (3) (a), and we concludethat the circumstances of this case do not warrant the " 'exceptional remedy of dismissal' " of theindictment (People v Workman, 277 AD2d 1029, 1031 [2000], lv denied 96NY2d 764 [2001], quoting People v Huston, 88 NY2d 400, 409 [1996]; see alsoPeople v Ramirez, 298 AD2d 413 [2002], lv denied 99 NY2d 563 [2002]).
Alternatively, defendant contends that the indictment should be dismissed because theprosecutor failed to instruct the grand jury to consider the August 2005 and April 2006 incidentsseparately. Defendant failed to preserve that contention for our review inasmuch as he failed toset forth that specific ground in that part of his omnibus motion seeking to dismiss the indictment(see generally People v Becoats, 71AD3d 1578, 1579 [2010], lv denied 15 NY3d 849 [2010]; People v Gross, 71 AD3d 1526,1527 [2010], lv denied 15 NY3d 774 [2010]; People v Beyor, 272 AD2d 929[2000], lv denied 95 NY2d 832 [2000]). Further, after the court inspected the grand juryminutes and advised defendant that the prosecutor failed to give a limiting instruction withrespect to the two incidents, defendant did not thereafter challenge the prosecutor's instructions(see People v Brown, 81 NY2d 798 [1993]). In any event, any deficiency in the grandjury instructions did not impair the integrity of the grand jury proceeding so as to requiredismissal of the indictment (seegenerally People v Walton, 70 AD3d 871, 874-875 [2010], lv denied 14 NY3d894 [2010]; People v Woodring, 48AD3d 1273, 1275-1276 [2008], lv denied 10 NY3d 846 [2008]).
Contrary to the further contention of defendant, we conclude that the court properly quashedhis subpoena duces tecum seeking DNA evidence pertaining to a suspect who had been excludedby the police. The subpoena in question ordered the State Division of Criminal Justice Servicesto produce "a certified copy of the DNA Databank submission form [and] DNA analysis"concerning that suspect. Inasmuch as defendant sought "DNA records contained in the state DNAidentification index," the release of those records is governed by Executive Law § 995-c(6). Section 995-c (6) (b) permits the release of DNA records "for criminal defense purposes, to adefendant or his or her representative, who shall also have access to samples and analysesperformed in connection with the case in which such defendant is charged" (emphasisadded). The DNA records sought by defendant do not qualify for release pursuant to that statutebecause the suspect's samples were not obtained nor were any analyses thereon performed "inconnection with the case in which . . . defendant is charged" (§ 995-c [6] [b];see People v Days, 31 Misc 3d586, 589-590 [2011]). The DNA records concerning the suspect predated the investigationand prosecution of the crimes at issue. Indeed, when the police ran the DNA obtained from theinstant crimes through the state DNA databank, there was no indication that the suspect was amatch.
Even assuming, arguendo, that disclosure of those DNA records was permissible pursuant toExecutive Law § 995-c, we conclude that defendant failed to set forth a sufficient factualpredicate to support the subpoena (seegenerally People v Reddick, 43 AD3d 1334, 1335 [2007], lv denied 10 NY3d815 [2008]). The individual in question was initially identified as a suspect because his neighborinformed the police that he matched the physical description provided by the victim. Thereafter,the investigation focused on defendant, who admitted to the police that he was at the bar wherethe victim had been working on the night of the April 2006 incident and that he engaged inconsensual sex with the victim. The victim identified the bar patron as her assailant. The policesubsequently determined that the DNA profile of defendant matched DNA found on the victim'smouth and vaginal area, as well as DNA taken from a glass found at the bar. In support of thesubpoena, defendant relied on the fact that DNA from an unknown male was found on the strawinside that glass. Evidence establishing that such DNA belonged to the suspect would not tend toexculpate defendant, in light of his admissions and evidence [*3]concerning his own DNA. Thus, defendant's subpoena requestamounted to nothing more than a "fishing expedition" (People v Kozlowski, 11 NY3d 223, 242 [2008], reargdenied 11 NY3d 905 [2009], cert denied 556 US —, 129 S Ct 2775 [2009]).
We reject the contention of defendant that the court erred in allowing police witnesses totestify that he changed his statement concerning the incident after being confronted withinformation allegedly provided by his wife. To the extent that defendant contends that suchtestimony deprived him of his right of confrontation, that contention is unpreserved for ourreview inasmuch as he did not object to the testimony on that ground (see People v McMillon, 77 AD3d1375 [2010], lv denied 16 NY3d 897 [2011]; People v Johnson, 40 AD3d 1011 [2007], lv denied 9NY3d 923 [2007]; People v Perez, 9AD3d 376 [2004], lv denied 3 NY3d 710 [2004]). In any event, " '[t]he[Confrontation] Clause . . . does not bar the use of testimonial statements forpurposes other than establishing the truth of the matter asserted' " (People v Reynoso, 2 NY3d 820,821 [2004], quoting Crawford v Washington, 541 US 36, 59 n 9 [2004]). Here, thetestimony was properly admitted in evidence to explain why defendant made certain admissionsto the police after first professing his ignorance of the incident and then denying his presence atthe crime scene (see People vLewis, 11 AD3d 954, 955 [2004], lv denied 3 NY3d 758 [2004]; Perez,9 AD3d 376; People v Glover, 195 AD2d 999 [1993], lv denied 82 NY2d 849[1993]). "Moreover, the court gave appropriate limiting instructions to the jury each. . . time [such testimony was given], and it is presumed that the jury followed thoseinstructions" (Lewis, 11 AD3d at 955-956; see People v McNeil, 63 AD3d 551, 552 [2009], lv denied13 NY3d 861 [2009]; Johnson, 40 AD3d 1011).
Contrary to the further contention of defendant, the court did not abuse its discretion inadmitting in evidence a recording of the 911 call made by the victim. The courtconcluded that the 911 call was admissible as an excited utterance because it was made while thevictim remained "under the influence of an exciting event," and there is no basis in the record todisturb that determination (see People vJefferson, 26 AD3d 798, 799 [2006], lv denied 6 NY3d 895 [2006]; People v Strong, 17 AD3d 1121[2005], lv denied 5 NY3d 795 [2005]).
Finally, in light of the heinous nature of the crimes at issue and defendant's lengthy criminalhistory, we conclude that the sentence, which we note is reduced by operation of law (seePenal Law § 70.30 [1] [e] [vi]), is not unduly harsh or severe. Present—Scudder,P.J., Peradotto, Carni, Gorski and Martoche, JJ.