| People v Borden |
| 2011 NY Slip Op 09719 [90 AD3d 1652] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BrianBorden, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedJuly 14, 2010. The judgment convicted defendant, upon a jury verdict, of criminal sexual act inthe first degree (three counts), predatory sexual assault (two counts), attempted rape in the firstdegree and robbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of,inter alia, three counts of criminal sexual act in the first degree (Penal Law § 130.50 [1]),arising from his sexual assault of a woman whom he grabbed off the street and dragged into analley. We reject defendant's contention that County Court erred in denying his motion for amistrial based on the testimony of a police detective at trial that defendant asked for an attorneywhen questioned by the police. Although that testimony was improper, it is clear from the recordthat it was not intentionally elicited by the prosecutor (cf. People v Morrice, 61 AD3d 1390, 1391 [2009]). In addition, thecourt promptly sustained defense counsel's objections and gave appropriate curative instructions.Under the circumstances of this case, we conclude that the court's curative instructions weresufficient to alleviate any prejudice to defendant as a result of the detective's unsolicitedtestimony (see People v Pierre, 37AD3d 1172 [2007], lv denied 8 NY3d 989 [2007]; see also People vNicholas, 286 AD2d 861, 862 [2001], affd 98 NY2d 749 [2002]; People vClark, 281 AD2d 947 [2001], lv denied 96 NY2d 860 [2001]).
Defendant's further contention that he was denied a fair trial based on the prosecutor'scomment during summation regarding the failure of defendant to testify is not preserved for ourreview, inasmuch as defense counsel requested either a mistrial or a curative instruction withrespect to that comment and made no further objection when the requested instruction was given."Under [those] circumstances, the curative instruction[ ] must be deemed to have corrected theerror to the defendant's satisfaction" (People v Heide, 84 NY2d 943, 944 [1994]).
Finally, we reject defendant's contention that the court erred in failing to conduct aFrye hearing concerning the admissibility of the DNA results obtained through the"AmpFISTR MiniFiler PCR Amplification Kit for DNA Analysis" (hereafter, MiniFiler test).Prior to trial, the court held a hearing at which a DNA expert called by the People testifiedwithout [*2]contradiction that the MiniFiler test is simply a moreadvanced form of traditional polymerase chain reaction/short tandem repeat testing, which thisCourt and others have long recognized as having gained general acceptance in the scientificcommunity (see People v Fontanez, 278 AD2d 933, 935 [2000], lv denied 96NY2d 862 [2001]; People v Hall, 266 AD2d 160 [1999], lv denied 94 NY2d 948[2000]; People v Hamilton, 255 AD2d 693, 694 [1998], lv denied 92 NY2d 1032[1998]). In addition, the court properly determined that defendant's challenges to the results ofthe MiniFiler test went to the weight of that evidence, not its admissibility (see generallyPeople v Wesley, 83 NY2d 417, 429 [1994]; People v Hayes, 33 AD3d 403, 404 [2006], lv denied 7NY3d 902 [2006]). Present—Fahey, J.P., Peradotto, Lindley, Green and Gorski, JJ.