| People v Davis |
| 2011 NY Slip Op 08799 [90 AD3d 432] |
| Dcmbr 6, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Rodney Davis, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J., at speedy trial motion; A.Kirke Bartley, J., at jury trial and sentencing), rendered March 6, 2009, convicting defendant ofburglary in the second degree, and sentencing him, as a persistent violent felony offender, to aterm of 16 years to life, unanimously affirmed.
Defendant raises several issues relating to DNA evidence. Defendant's DNA matched DNAfound on a cigarette butt recovered from a bedroom at the burglarized premises, and it alsomatched DNA found in a bloodstain left on a wall. It appears that prior to trial both theprosecutor and defense counsel misunderstood a laboratory report to mean that a match wasfound as to the cigarette butt but not the bloodstain.
Defendant contends that his trial counsel rendered ineffective assistance when heinadvertently elicited testimony that defendant's DNA matched the bloodstain. However, weconclude that defendant received effective assistance under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Strickland vWashington, 466 US 668 [1984]). This is a case where the trial record itself permits reviewof the ineffective assistance claim (see People v Brown, 45 NY2d 852, 853 [1978]).
Defendant has not shown a reasonable probability that any mistake in eliciting incriminatingevidence concerning the bloodstain affected the outcome of the trial or rendered the trial unfair(see People v Davis, 78 AD3d435, 436 [2010], lv denied 16 NY3d 742 [2011]). The evidence of defendant's guiltwas already overwhelming without the second DNA match. This evidence included the DNAmatch relating to the cigarette butt, as well as defendant's highly incriminating statements andbehavior when he returned to the scene and encountered the victim. Contrary to defendant'sarguments, the evidence excludes any reasonable possibility that defendant left the cigarette inthe apartment at the time he returned to the premises instead of at the time of the burglary.
Defendant did not preserve his claim that the prosecutor deprived him of a fair trial bycreating a misleading impression that only the cigarette yielded a DNA match. Defendant madethat claim for the first time in a postverdict motion, which was insufficient to preserve the issue[*2]for appellate review (see People v Padro, 75 NY2d820, 821 [1990]).
We decline to review this claim in the interest of justice, and as an alternative holding wefind no basis for reversal. The People fulfilled their discovery obligations by turning the DNAreport over to the defense (see CPL 240.20 [1] [c]). At various stages of the litigation,including the trial itself, the prosecutor did create a misleading impression that defendant's DNAwas found only on the cigarette and not the bloodstain; the prosecutor evidently was under thatmisimpression himself. Nevertheless, this did not require the drastic remedy of a new trial, theonly remedy available given that defendant did not raise the issue until after the verdict. ThePeople did not act in bad faith (seePeople v McNeil, 63 AD3d 551, 552 [2009], lv denied 13 NY3d 861 [2009]).Even if the prosecutor's error contributed to defense counsel's error in eliciting the bloodstainDNA evidence, that evidence did not affect the outcome of the trial, as noted above.
Defendant did not preserve his claim that the admission of certain DNA evidence violated hisconstitutional right of confrontation (seePeople v Liner, 9 NY3d 856 [2007]). Defendant's objections unmistakably invoked thehearsay rule rather than the right of confrontation, as the trial court's ruling made clear. Wedecline to review this claim in the interest of justice. As an alternative holding, we reject it on themerits. In People v Brown (13NY3d 332, 335 [2009]) the Court of Appeals found a similar DNA report to benontestimonial for Confrontation Clause purposes, and we find no basis to distinguish the reportin this case.
The court properly denied defendant's speedy trial motion. The contested periods wereexcludable because they involved motion practice (see CPL 30.30 [4] [a]; People vWilliams, 213 AD2d 350 [1995], lv denied 87 NY2d 852 [1995]), because defensecounsel actively participated in setting the adjourned date and sought a longer adjournment forhis own convenience (see CPL 30.30 [4] [b]; People v Davis, 80 AD3d 494, 495 [2011]), or because defensecounsel requested additional adjournments after the People's statement of readiness (seePeople v Reyes, 240 AD2d 165, 166 [1997], lv denied 90 NY2d 942 [1997]).Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and DeGrasse, JJ.