| People v Scott |
| 2012 NY Slip Op 01922 [93 AD3d 1193] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Andre L.Scott, Also Known as Andre Scott, Appellant. |
—[*1] Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedOctober 28, 2010. The judgment convicted defendant, upon a jury verdict, of burglary in the firstdegree, attempted murder in the second degree and arson in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and arsonin the second degree (§ 150.15), defendant contends that the evidence is legallyinsufficient to support the conviction. We reject that contention. Viewing the evidence in thelight most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), weconclude that there is a valid line of reasoning and permissible inferences to support the jury'sfinding that defendant committed the crimes of which he was convicted based on the evidencepresented at trial (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).Furthermore, viewing the evidence in light of the elements of the crimes as charged to the jury(see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
We reject defendant's contention that County Court erred in refusing to suppress evidencethat was seized by a parole officer and provided to the police officers investigating the instantcriminal activity. It is well settled that a "parole officer may conduct a warrantless search where'the conduct of the parole officer was rationally and reasonably related to the performance of theparole officer's duty' " (People vNappi, 83 AD3d 1592, 1593 [2011], lv denied 17 NY3d 820 [2011], quotingPeople v Huntley, 43 NY2d 175, 181 [1977]). Here, two parole officers were assistingBatavia police officers in locating defendant, and the parole officers smelled alcohol ondefendant's breath. They knew that defendant's special conditions of parole prohibited him fromconsuming alcohol, and they therefore were acting within their duties in taking samples of hissaliva and breath for alcohol and drug testing purposes. Based on the evidence presented at thesuppression hearing, we cannot conclude that "the trial court erred, as a matter of law, inconcluding that the search of the defendant[ ] . . . by [the] parole officer[s], withpolice assistance, . . . 'was in furtherance of parole purposes and related to [their]duty' " as parole officers (People v Johnson, 63 NY2d 888, 890 [1984], reargdenied 64 NY2d 647 [1984]; seePeople v Lynch, 60 AD3d 1479, 1480 [2009], lv [*2]denied 12 NY3d 926 [2009]).
Contrary to defendant's further contention, the court did not abuse its discretion in refusing topermit him to introduce evidence of a third party's alleged involvement in the criminal activity.Although "evidence tending to show that another party might have committed the [criminalactivity] would be admissible, before such testimony can be received there must be such proof ofconnection with it, such a train of facts or circumstances as tend clearly to point out [someone]besides [defendant] as the guilty party" (Greenfield v People, 85 NY 75, 89 [1881]; see People v Schulz, 4 NY3d 521,529 [2005]). Furthermore, "[r]emote acts, disconnected and outside of the [criminal activity]itself, cannot be separately proved for such a purpose" (Greenfield, 85 NY at 89; seeSchulz, 4 NY3d at 529). Here, given the lack of evidence supporting defendant's theory, "thetestimony of the defense witness that the third party in question might have [had a motive toharm one of the residents of the apartment building where the fire occurred] was irrelevant and,indeed, was likely to cause undue prejudice . . . and confusion with respect to theevidence presented to the jury" (Peoplev Prindle, 63 AD3d 1597, 1598 [2009], mod on other grounds 16 NY3d 768[2011] [internal quotation marks omitted]; see Schulz, 4 NY3d at 528). "Contrary to thedefendant's [further] contention, the court properly allowed the People's witness to testify as anexpert in the field of forensic DNA analysis and the court's decision, given the absence of anabuse or improvident exercise of discretion, [will] not be disturbed on appeal" (People vHolman, 248 AD2d 637, 638 [1998], lv denied 92 NY2d 853 [1998]; seegenerally People v Cronin, 60 NY2d 430, 432-433 [1983]).
Inasmuch "as defense counsel never specifically objected to the DNA testimony on thegrounds he now presses on appeal, namely that [there was an insufficient foundation for theintroduction of that evidence due to the testing that was performed], defendant failed to preservethis issue for our review" (People vEncarnacion, 87 AD3d 81, 89 [2011], lv denied 17 NY3d 952 [2011]; seegenerally People v Gray, 86 NY2d 10, 19 [1995]). In any event, defendant's contentions goto the weight of the evidence, not its admissibility (see People v Borden, 90 AD3d 1652, 1653 [2011]). Contrary todefendant's further contention that there was an insufficient chain of custody with respect to theevidence upon which the DNA testing was performed, we conclude that " 'the circumstancesprovide reasonable assurances of the identity and unchanged condition' of the evidence"(People v Julian, 41 NY2d 340, 343 [1977]), and any deficiencies in the chain of custodytherefore "affect only the weight of the evidence and not its admissibility" (People v Watkins, 17 AD3d 1083,1084 [2005], lv denied 5 NY3d 771 [2005]).
Finally, defendant failed to preserve for our review his contention that the orders ofprotection issued by the court do not comport with CPL 530.13 (see People v Nieves, 2 NY3d 310,315-317 [2004]), and we decline to exercise our power to review that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Present—Smith, J.P.,Fahey, Lindley and Martoche, JJ.