| People v Mason |
| 2012 NY Slip Op 08932 [101 AD3d 1659] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Curtis L. Mason,Appellant. |
—[*1] Barry L. Porsch, District Attorney, Waterloo, for respondent.
Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), rendered March 28,2011. The judgment convicted defendant, upon a jury verdict, of official misconduct.
It is hereby ordered that the judgment so appealed from is unanimously affirmed and the matter isremitted to Seneca County Court for proceedings pursuant to CPL 460.50 (5).
Memorandum: Defendant appeals from a judgment convicting him, following a second jury trial, ofone count of official misconduct (Penal Law § 195.00 [1]). Following the first trial, County Courtset aside the verdict finding him guilty of that offense based on the People's failure to disclose Bradyand Rosario material. Defendant was thereafter convicted of the same offense followingthe second jury trial. Defendant contends that the court erred in admitting DNA evidence at his first andsecond trials. We reject that contention. The victim testified at both trials that defendant, a correctionofficer working at the correctional facility where the victim was housed, took the victim to a secludedarea where he engaged in sexual conduct with the victim and thereafter ejaculated. Forensicinvestigators took swabs from the area, and two of the swabs tested positive for the presence of sperm.DNA profiles generated from the two swabs were compared to profiles generated from buccal swabstaken from defendant and the victim. Both samples were "consistent with DNA [of defendant] alsomixed with DNA from at least one DNA donor, with [defendant] being . . . the majorcontributor." The victim was excluded as a potential donor with respect to both samples. Contrary todefendant's contention, the DNA evidence does not constitute Molineux evidence, i.e.,evidence that defendant engaged in a sexual act with another inmate at a different time. Rather, itconstitutes direct evidence of his guilt of the instant offense. As the court properly noted, "[a]lthough thetwo samples were obtained from the same location and thus they are mixed, it doesn't follownecessarily that the two samples arrived th[ere] through sexual acts committed at the same time." In ourview, "[i]t cannot be trivialized as mere coincidence that [defendant's semen] was . . .recovered at the scene" of the alleged sexual encounter (People v Gonzalez, 193 AD2d 360,361 [1993]). We thus conclude that the DNA evidence is direct and relevant evidence of the instantoffense (see generally People v Scarola, 71 NY2d 769, 777 [1988]; People vMirenda, 23 NY2d 439, 453 [1969]).
Defendant further contends that the verdict following the first trial was "against the weight of theevidence," but his sole contention with respect to "weight" is that the jury in the [*2]first trial could not have justifiably found him guilty of official misconductyet have acquitted him of two counts of criminal sexual act in the third degree (Penal Law §130.40 [1]) arising out of the same incident. The People, in response, contend that defendant'schallenge to the weight of the evidence at the first trial is not properly before this Court. As apreliminary matter, we reject the People's contention. A defendant who has been found guilty upon aretrial may still challenge the weight of the evidence at the first trial on the premise that, "if the verdictwere against the weight of the evidence at the first trial, a retrial would [have been] barred" (People v Scerbo, 74 AD3d 1730,1733 [2010], lv denied 15 NY3d 757 [2010]; see People v Romero, 7 NY3d 633, 644 n 2 [2006]). In our view,however, defendant is not actually challenging the weight of the evidence but, rather, is contending thatthe verdict in the first trial was either repugnant or inconsistent. That contention is not preserved for ourreview and thus is not properly before us inasmuch as defendant failed to object to the inconsistency ofthe verdict "after the verdict [was] rendered, but before the jury [was] discharged" (People v Johnson, 93 AD3d 408, 409[2012], lv denied 19 NY3d 974 [2012], cert denied 568 US —, 133 S Ct 447[2012] [emphasis added]; see generally People v Alfaro, 66 NY2d 985, 987 [1985]).Although defendant raised the theoretical possibility of an inconsistent verdict after the court took apartial verdict under the authority of CPL 310.70 (1) (b), the court properly concluded that defendant'sobjection was premature. When the final verdict in the first trial was ultimately rendered, defendantfailed to renew his objection (see e.g. People v Hines, 97 NY2d 56, 61 [2001], reargdenied 97 NY2d 678 [2001]; People v Russell, 71 NY2d 1016, 1017-1018 [1988],rearg dismissed 79 NY2d 975 [1992]; People v Hardy, 38 AD3d 1169, 1169-1170 [2007], lv denied9 NY3d 865 [2007]). In any event, we conclude that the verdict was neither repugnant nor inconsistentbecause "there is a possible theory under which a split verdict could be legally permissible" (People v Muhammad, 17 NY3d 532,540 [2011]; see generally People v Trappier, 87 NY2d 55, 58 [1995]; People vTucker, 55 NY2d 1, 7 [1981], rearg denied 55 NY2d 1039 [1982]). "[T]he apparentlyillogical nature of the verdict—as opposed to its impossibility—[must be] viewed as amistake, compromise or the exercise of mercy by the jury, none of which undermine[s] a verdict as amatter of law" (Muhammad, 17 NY3d at 540; see People v Harris, 98 AD3d 420, 420 [2012]; People v Abraham, 94 AD3d 1332,1333 [2012]). Present—Scudder, P.J., Centra, Valentino, Whalen and Martoche, JJ.